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Full text of "The law of armed conflict : into the next millennium"

INTERNATIONAL LAW STUDIES 

Volume 71 



Library of Congress Cataloging-in-Publication Data 

The law of armed conflict : into the next millenium / Michael N. 
Schmitt & Leslie C. Green, editors. 

p. cm. — (International law studies ; v. 71) 

Includes index. 

1. War (International law) 2. War victim — Legal status, laws, 
etc. I. Schmitt, Michael N., 1956~ II. Green, L. C. (Leslie C), 
1920-. 
III. Series. 

KZ6355.L39 1998 98-19204 

341.6— dc21 CIP 



INTERNATIONAL LAW STUDIES 



Volume 71 



The Law of Armed Conflict: 
Into the Next Millennium 



Michael N. Schmitt & Leslie C. Green 
Editors 




Naval War College 

Newport, Rhode Island 

1998 



IN MEMORIAM 

This book is dedicated to the memory of Professor W. Thomas 
Mallison — shipmate, scholar, patriot, and friend. 



Contents 

Page 

Foreword 

Rear Admiral James R. Stark xi 

Introduction 

Michael N. Schmitt 

Leslie C. Green xii 

Rear Admiral Charles H. Stockton, the Naval War College, 

and the Law of Naval Warfare 
John Hattendorf xvii 

I. Megatrends in the Use of Force 

Anthony D'Amato 1 

II. The Universality Principle and War Crimes 

Yoram Dinstein 17 

III . Implementation of International Humanitarian Law 

in Future Wars 
Louise Doswald-Beck 39 

IV. The Development of the Law of Armed Conflict through the 

Jurisprudence of the International Criminal Tribunal 
for the Former Yugoslavia 
William Fenrick 77 

V. The Role of Individuals in International Humanitarian Law 

and Challenges for States in Its Development 
Dieter Fleck 119 

VI . What Is— Why Is There— the Law of War? 

Leslie Green 141 

VII. The Law of Weaponry at the Start of the New Millennium 
Christopher Greenwood 185 

VIII. Nongovernmental Organizations in Situations of Conflict: 

The Negotiation of Change 
Franchise Hampson 233 

IX. The Law of Naval Warfare and International Straits 

Wolff Heintschel von Heinegg 263 



X. Some Thoughts on Ideas That Gave Rise to International 

Humanitarian Law 
Geza Herczegh 293 

XI. An Optimist Looks at the Law of War 

in the Twenty-First Century 
Howard Levie 311 

XII. War Crimes Law for the Twenty -First Century 

Theodor Meron 325 

XIII. Nongovernmental Organizations and 

International Humanitarian Law 

VedNanda 337 

XIV. Implementation of the Laws of War 

in Late-Twentieth-Century Conflicts 
Adam Roberts 359 

XV. Bellum Americanum: The U.S. View of 

Twenty -First-Century War and Its Possible Implications 
for the Law of Armed Conflict 
Michael Schmitt 389 

XVI. The Development of International Law 

with Respect to the Law Enforcement Roles of Navies 
and Coast Guards in Peacetime 
Ivan Shearer 429 

XVII . The Law of Economic Sane tions 

Paul Szasz 455 

XVIII. The International Criminal Tribunal and Subpoenas 

for State Documents 
Ruth Wedgwood 483 

XIX. Military Activities on the High Seas: 

What Are the Impacts of the 
U.N. Convention on the Law of the Sea? 
RudigerWolfrum 501 

Contributors 515 

Index 521 



Foreword 

The International Law Studies series was initiated by the Naval War College to 
publish essays, treatises, and articles that contribute to the broader understanding 
of international law. With this volume we recognize Rear Admiral Charles H. 
Stockton, on the 100th anniversary of his assumption of duties as the President of 
the Naval War College, for his contributions to the study of international law at 
the College, and his influence on the development of the law of naval warfare. 
Indeed, Admiral Stockton is largely responsible for this series, which has become 
known as the "Blue Books." 

As the 20th Century draws to a close, it is particularly fitting to look into the 
future to examine how the law of armed conflict, and the international 
community's effort to effectively enforce adherence to it, may develop in the next 
millennium. Over the past century, the changes in this body of law have been 
dramatic. From a law based largely on custom and practice, and primarily focused 
on basic humanitarian protections for combatants and noncombatants, today the 
law is increasingly based on conventions addressing the means and methods of war. 
Yet as significant as these changes have been, those in the nature of conflict and 
the manner in which war is conducted have been even greater. Low-intensity 
conflict within nations has become increasingly frequent over the last half of the 
century. Accelerating technological advances have made possible weapons with 
capabilities that have fundamentally altered the manner in which wars are fought. 
Even space looms as a potential battlefield. It has been and continues to be a 
challenge to adapt the law to what has appropriately been described as a revolution 
in military affairs. 

This volume consists of articles written by some of the world's most highly 
regarded experts on the law of armed conflict. While the opinions expressed are 
those of the individual authors, and not necessarily those of the United States 
Navy or the Naval War College, they collectively provide valuable insights into 
possible developments in the law regulating armed conflict, and how that law will 
be enforced. On behalf of the Secretary of the Navy, the Chief of Naval 
Operations, and the Commandant of the Marine Corps, I extend to the editors and 
the contributing authors our gratitude and thanks. 



JAMES R. STARK 
Rear Admiral, U.S. Navy 
President, Naval War College 




Charles H. Stockton 



Introduction 

One century ago, Commander Charles H. Stockton assumed the Presidency 
of the United States Naval War College. Although not a lawyer, his 
appointment heralded an important milestone in the development of 
international law, particularly the law of armed conflict, during the 20th 
Century. For instance, in 1890 he prepared the U.S. Navy's first Naval War 
Code, The Law and Usages of War at Sea. Issued the following year as General 
Order 551, this work is fairly characterized as the naval equivalent of the Lieber 
Code. Stockton was also primarily responsible for the tradition of bringing 
renowned international law scholars to the War College, including Brown's 
George Grafton Wilson and Columbia's John Bassett Moore. Convinced of the 
need to "link the college with the universities of the country and place the 
service in greater sympathy with our more thoughtful men," Stockton also 
maintained close working relationships with many other luminaries of 
academia, such as Thomas Woolsey of Yale. 

Following his tenure as President, Stockton went on to command the 
battleship USS Kentucky, serve as the U.S. Naval Attache in London, and 
achieve the rank of Rear Admiral before retiring in 1907. Despite retirement 
from active service, Stockton continued his efforts in international law. An 
original member of the American Society of International Law, he addressed 
its first annual meeting in 1907, became a frequent contributor to the 
American Journal of International Law, and served on its Executive Committee 
until 1924. In 1908 Stockton led the U.S. delegation to the London 
Conference, which was tasked with drafting a code of naval warfare. The 
Conference eventually produced the Declaration of London of 1909. 
Although never ratified by any country, the Declaration has been applied in a 
number of conflicts and continues to influence the practice of naval warfare 
even today. 

Stockton received his first law degree in 1909, an honorary doctorate from 
George Washington University. He was soon thereafter appointed to the 
faculty of the University, where he wrote two of his most influential works, 
Manual of International Law for the Use of Naval Officers and Outlines of 
International Law. Stockton was appointed President of George Washington 
University in 1910; today Stockton Hall houses its law school. 

Two visible legacies of Admiral Stockton's influence remain at the Naval 
War College. First, since 1951 his vision of hosting recognized scholars of 
international law has been reborn in the form of the Stockton Chair of 
International Law. Holders have included, inter alia, Manley Hudson, Hans 



Kelsen, Richard Lillich, Howard Levie and Robert Turner. Their presence has 
added a dimension of inquiry into international legal problems unavailable at 
any other such institution in the world. Second, the War College's 
International Law Studies series (colloquially known as the "Blue Books") 
continues a tradition of War College publication in international law that 
began during the Stockton era. Indeed, the third Blue Book was written by 
Stockton himself in 1899, and the first numbered volume was authored by 
Stockton's friend, John Basse tt Moore. Since then, over seventy of the volumes 
have been published. 

In light of these legacies, it is particularly apropos that the centenary of the 
Stockton presidency be commemorated with a Blue Book consisting of 
contributions by an internationally distinguished group of scholars. 
Moreover, much as Stockton's work reflected on the state of the law of 
military operations at the turn of a new century, it is a propitious moment in 
history to reflect on the direction this corpus of jurisprudence is likely to take 
as we enter a new millennium — thus, The Law of Armed Conflict: Into the Next 
Millennium. 

As editors, we took a rather unorthodox approach to our task. Most edited 
works are developed thematically. An editor develops a theme, fleshes it out 
into sub-topics, and seeks experts to comment thereon. By this method, we 
would have selected topics which we (perhaps presumptuously) anticipated to 
likely be of normative significance in the future and parse them out to 
contributors. However, our purpose was not to peer into the future as we saw it, 
but rather to gather a distinguished, provocative, and insightful group and 
provide them an unconstrained forum in which to reflect on the future as they 
perceived it. Thus, we were less editors than we were facilitators of the essays 
contained in this book. Though we did at times suggest topics to certain of our 
contributors, we only did so because of our sense that they might have 
something particularly fascinating to say on the subjects. Some wrote on 
entirely different topics, and that was fine because in great part we were 
interested not only in what contributors had to say, but also in what issue they 
chose to comment on at this point in history. 

The result is a collection of insightful essays which are analytical, predictive, 
and aspirational in nature. Moreover, while some of the authors took a macro 
approach towards evolution (revolution?) of the law, others elected to examine 
a micro issue which they believed to be particularly significant for the next 
millennium. Interestingly, though a number of contributors highlight common 
features of tomorrow's normative environment — such as the role of non-State 
actors and the effect of next generation weaponry — the only thread that 



xiv 



consistently seems to run through most of the essays is that of implementation 
of the law of armed conflict by way of effective enforcement measures. The 
calls for new law are rather muted; instead, the emphasis of most contributors is 
on rendering the existing prescriptive architecture effective. This diversity was 
as we had hoped, for our intent was to produce a work that caused others to 
think beyond the present, to reflect on where, as a global normative 
community, we might — and should — be headed. 

In the production of any such work, there are many friends and colleagues 
to thank. Obviously, we are most grateful to the distinguished group of 
scholars who gave of their time and thoughts to make this book possible. 
Working with each and every one of them has been an absolute pleasure. At 
the Naval War College's Center for Naval Warfare Studies, Dean Robert 
Wood and Captain Dan Brennock were, as always, extraordinarily supportive 
of the project, both financially and substantively. So, too, was Colonel 
"Buck" Buckwalter, the Senior Air Force Adviser at the Naval War College. 
Dean Barbara Safriet of Yale Law School graciously extended the offer to host 
Lieutenant Colonel Schmitt as a Visiting Scholar for the year during which 
the book was developed, thereby making possible editing in an intellectually 
rich environment. We also extend our gratitude to two of our colleagues in 
the War College's Oceans Law and Policy Department — Professor Jack 
Grunawalt and Colonel Lou Reyna — who selflessly devoted themselves to 
the often thankless task of proofreading. Further, we are grateful to Captain 
Ralph Thomas and Lieutenant Colonel James Duncan, the unsung heroes of 
the International Law Studies series. They are the ones who make the series 
work, from design to publication to distribution. We were also most fortunate 
to have had the superb support of two naval reservists, Lieutenant 
Commanders Sarah Supnick and Tom Wingfield, who during critical periods 
in the production of the book served as editors while we were away. But for 
their hard work, the project would have been delayed many months. We owe 
a special debt of gratitude to Mr. Pel Boyer of the Naval War College Press for 
making his editorial expertise available to us throughout the project. We are 
also grateful to Ms. Carole Boiani and Ms. Gina Vieira of the War College's 
Publications and Printing Division. They managed the herculean task of 
pulling together manuscripts prepared in disparate styles and with sundry 
software from around the world, and then suffered a sea of revisions, with 
unflappable grace and good humor. Finally, as anyone who has ever taken on 
such a project surely realizes, in the end it is the family which suffers as the 
best laid plans become rushed deadlines and missed dinners. Therefore, it is 



xv 



to Lilian, Lorraine, and Danielle that we owe our most heartfelt expression of 
gratitude. 

By the time this book is published, both of us will have departed the Naval 
War College for other venues. Our time here has been enjoyable, beneficial, 
and productive — we cannot imagine how it could have been improved. As we 
leave, it is our hope that those who come here to consider international law in 
the next one hundred years find it to be the fertile intellectual environment 
that it has been over the past century. 



Michael N. Schmitt, Lt Col, USAF Leslie C. Green, CM., LL.B., LL.D., F.R.S.C. 
Professor of Law Stockton Professor of International Law 

United States Air Force Academy Naval War College 



xvi 



Rear Admiral Charles H* Stockton, 

the Naval War College, 

and the Law of Naval Warfare 



John Hattendorf 




INCE ITS FOUNDING IN 1884, the U.S. Naval War College has played a 
role in the study and formulation of the law of armed conflict. Many 
distinguished scholars and lawyers have taught, researched, and written studies 
in this field at the College. The roll call of its professors of international law 
includes such distinguished scholars as John Bassett Moore, George Grafton 
Wilson, Manley O. Hudson, Hans Kelsen, Thomas Mallison, and Howard 
Levie. 

Many of the most well-known names are those of scholars who held the 
position as a part-time appointment and worked at the Naval War College for a 
few months each year, while also holding chairs at major civilian universities. 
This policy changed only in July 1951, when the Secretary of the Navy created 
the College's first two full-time civilian academic appointments: a professor of 
history and a professor of international law. For many years both were normally 
held by visiting scholars for a one or two-year period. On 6 October 1967 the 
College named the law position the Charles H. Stockton Chair of International 
Law. 1 In attaching the name of Stockton to one of its oldest and most 
prestigious academic chairs, the Naval War College remembered a naval 
officer who was a key figure in its own institutional history as well as an 
important figure in the development of the law of naval warfare. Today, the 
prestigious Stockton Chair at the Naval War College, and Stockton Hall, the 
home of the Law School at The George Washington University in 



Stockton, the War College and the Law 



Washington, D.C., are the principal tokens of his memory and his 
achievements. 

Looking behind those names, one finds that the man, Charles Stockton, had 
an extremely successful forty-six-year career as a naval officer, ashore and 
afloat. In some respects he was a person of remarkable contrasts. A man with 
strong ethical and religious beliefs, he was largely self-taught in the area of 
international law, but through his active service at sea he became fully aware of 
the need for his fellow officers to understand the practical applications of law in 
their daily responsibilities. A quiet and studious person, he nevertheless loved 
active duty at sea. Deeply interested in naval history and strategy, as well as an 
advocate of preparedness and a strong navy, he was devoted to developing an 
international consensus and public awareness of legal restraints on warfare. 
Among all his many activities, Stockton's contributions to the development of 
the law o{ naval warfare stand as his most important achievement. They are 
among the foundations upon which future work in the law o( armed conflict 
rests. 

Early Life 

International law only gradually entered Stockton's life as he pursued his 
career. 2 Setting out to be a naval officer, he eventually found that his family 
background, early education, and his experiences at sea as a naval officer had 
laid a firm foundation for his interest in the subject as well as the basis of his 
outlook as to its practical application. In addition, his repeated assignments to 
the Naval War College provided him with his first opportunities to study 
international law in depth and to make an original contribution to it. 
Exemplifying the broader development of international law within the United 
States during the late nineteenth and early twentieth centuries, Stockton's life 
reflects how one individual developed an interest in the subject, an interest 
arising from his own fundamental religious and moral beliefs, as well as from his 
perceptions as a naval officer during the rise of the United States as a world 
power. 

Charles Herbert Stockton was born in Philadelphia, Pennsylvania, on 
October 13, 1845, the second child and eldest son of thirteen children. His 
parents were William Rodgers Stockton, of an old New Jersey family, and 
Emma Trout Gross, the daughter of Gottlieb Gross, who had immigrated from 
Wurttemberg in about 1810. Bearing the name of Charles' grandfather o( 
Burlington County, New Jersey, that side of the family was well known for 
literary accomplishments. Among them were the writer Louise Stockton, the 

xviii 



John Hattendorf 



journalist John D. Stockton, the novelist Frank R. Stockton, and the Rev. 
Thomas H. Stockton, a celebrated ecclesiastical orator and the chaplain of the 
House of Representatives, whose prayer accompanied Lincoln's Gettysburg 
Address at the dedication of the battlefield cemetery in 1863. 

When Charles Stockton was born, his father was operating a real estate 
business in a triangular-shaped building at the corner of Ridge Avenue, 11th 
Avenue, and Buttonwood Street in Philadelphia. The family occupied the 
upper floors of the building, while the father operated his business on the 
ground floor. Following a successful business career, during which he was 
prominent in city affairs, Stockton's father began to study for the ministry. He 
was ordained a deacon in the Episcopal Church in 1858 and a priest in 1859. 
The family moved to Evansburg, Pennsylvania, in 1858, when Stockton's 
father was appointed rector of St. James's Church there as well as of St. Peter's 
Church in nearby Phoenixville in Montgomery County, the site of an iron 
works. In those years, the young Stockton grew up as "a gentleman's son;" his 
family was well off, and he naturally associated with boys from other cultivated 
families. For a time young Stockton attended the Germantown Academy, 
where his classmates were children of well-to-do families. There, he joined 
them in playing cricket and "town-ball," the forerunner of baseball. 

On the Evansburg parish's two-hundred-acre glebe farm, family life in the 
period from 1858 to 1861 had a great affect on young Stockton. He particularly 
enjoyed the active, rural life of Montgomery County, with its Pennsylvania 
Dutch population and their idiomatic use of English mixed with German 
expressions. In addition to the moral influences of his family and from the 
various religious communities of that region, he was deeply impressed with the 
idea of community, of joining a variety of different types of people. Interested in 
politics from an early age, the fifteen year old Charles joined in the activities of 
the Wide Awake Club, participating in its election marches in 1860 to support 
Abraham Lincoln for president and William Morris Davis for representative 
from Pennsylvania's fifth congressional district. 

When the Civil War broke out soon after Lincoln's inauguration, there was 
a widespread military spirit throughout the country, and like many other young 
boys, the now sixteen-year-old Charles Stockton tried to enlist as a corporal in 
the cavalry. Rev. Stockton, however, approached a number of people to 
produce for his son a better opportunity. He wrote to his relative in 
Washington, Rev. Thomas Stockton, the chaplain to Congress; Thomas, 
however discouraged the military idea and argued that Charles should pursue 
his education, preferably a religious one. "The more I see of war," Thomas 
Stockton wrote, "the more I value peace. I can only tolerate war, as a sort of 

xix 



Stockton, the War College and the Law 



Providential necessity. Surely God would never suffer it, except as a sad 
instrument of some good accomplishment, hardly to be otherwise attained." 3 
(It was a thought that Charles kept in mind, even at the end of his life, when he 
recorded the note verbatim in a memoir of his early days.) Rev. William 
Stockton, however, also wrote to his newly elected congressman, William 
Davis, asking him to obtain an appointment to West Point. Davis, who had 
been to sea as a young man in a whaling ship and later published memoirs of 
those years, 4 suggested that young Stockton should try the Naval Academy, 
where he had an appointment available. 

First Years in the Navy 

The Civil War had been going on for six months when Charles Stockton 
entered the Navy on November 14, 1861. The three-month soldiers who had 
enlisted at the outset of the war had already been discharged, and the call was 
out for volunteers to serve three-year terms. The Naval Academy had moved 
to Newport, Rhode Island, for its security, since a large proportion of the border 
state of Maryland was disaffected toward the Union. After Charles took and 
passed the entrance examination for the Naval Academy, his father returned 
to Pennsylvania and resigned from one of his two churches, St. James's Church, 
and moved to take charge full-time oi St. Peter's at Phoenixville. Charles's 
parents lived there for the remainder of their lives. Phoenixville became home 
to Charles on leaves oi absence from the Naval Academy and in later years 
from service afloat. 

At the Academy in Newport Stockton spent his plebe year on board the old 
frigate USS Constitution, eventually moving to the school's main building in the 
former Atlantic House Hotel. With no previous connections with the sea or 
with naval officers, the impressionistic teenager long remembered his first sight 
and sound of Newport harbor. Among his vivid memories were the profound 
silence of the early dawn in the harbor and on the Bay. "At times large clipper 
ships anchored to await favorable winds," he later wrote, "and often in the early 
morning they would get underway with the land breeze and stand out of the 
harbor. I heard from them for the first time in weighing anchor the shanty songs 
of the sea, with the refrain made by the clank-clank of the windlass." 5 Stockton 
received his first seamanship instruction at the Academy on board the USS 
Marion, commanded by Lieutenant Commander Stephen B. Luce, with whom 
he would later have additional connections. Under Luce's skillful direction, 
Marion became a very successful practice vessel for midshipmen, who sailed it 
the length and breadth of Narragansett Bay. 

xx 



John Hattendorf 



The Civil War had an immediate effect on the Stockton family. No sooner 
had Charles joined the Navy than his father took a leave of absence from his 
parish to be chaplain of the 61st regiment o{ Pennsylvania Volunteers. 
Captured by Confederate forces under Major General D. H. Hill at the Battle 
of Fair Oaks during the Virginia Peninsular campaign in 1862, Chaplain 
Stockton was first sent to Libby prison and then to Salisbury, North Carolina, 
where he was eventually released with several other chaplains and doctors. 
Upon his release he returned to his parish work in Phoenixville. 

Naval Academy midshipmen were given summer leave in 1863, and 
Stockton returned home to Phoenixville, just before the Confederate Army of 
Northern Virginia under Robert E. Lee invaded southern Pennsylvania. 
Stockton once again attempted to join the Army and to assist in defending his 
state. His attempt was, he later recalled, "without success, as I was a 
midshipman, neither fish, flesh or fowl or, as the Cape Cod men say, good red 
herring."^ Disappointed, Stockton did not see action at Gettysburg or 
elsewhere. In the autumn he returned to his studies at the Naval Academy in 
Newport. There he did poorly in both pure and applied mathematics but 
maintained a high standard in ethics, English, and international law, a subject 
he first met during his final year at Newport. 

At that time, there was no suitable textbook available to the U.S. Navy for 
studying international law. The most authoritative American work was Henry 
Wheaton's Elements of International Law, first published in 1836. Wheaton had 
been dead for a dozen years, and several editors had revised and updated his 
book. In 1865, two competing eighth editions were on the market. The first, by 
the Boston lawyer and author of Two Years before the Mast, Richard Henry 
Dana, had appeared in 1863. In 1865 William Beach Lawrence, a well-known 
writer living in Newport, published another eighth edition, claiming that the 
Wheaton family had given him the sole right o( revision. 

During his Naval Academy years Stockton called on Lawrence, a relative of 
his Academy roommate, Beach Carter, at his beautiful home in Newport's 
Ochre Point district. The former American diplomat and onetime lieutenant 
governor of Rhode Island impressed Stockton as an exceptionally learned but a 
very contentious man, one who seemed to seek and enjoy litigation. The Naval 
Academy found itself in a difficult position, since Lawrence, living in the same 
town, contested the Academy's use of Dana's version. Actually, officials at 
both the Naval Academy in Newport and at the Navy Department in 
Washington preferred Dana's work to Lawrence's, taking exception to some of 
Lawrence's views on U.S. policy during the Civil War. (On later reflection, 
Stockton himself felt that Dana's edition was far superior to Lawrence's, feeling 

xxi 



Stockton, the War College and the Law 



that Dana's notes on recognition of belligerency and independence remained 
classics on the subject.) Lawrence took his case to court, which decided the 
issue in his favor, preventing Dana's edition from being published in the United 
States (although it was printed and sold in Britain). Since the Navy would not 
allow the use of Lawrence's version, the Academy fell back on two general 
works, Theodore Woolsey's International Law and Chancellor Kent's Lectures. 
Neither of these authors dealt with the subject in the practical and thorough 
way necessary to meet the needs of naval officers. 

Assignments at Sea and Ashore 

Like most of his fellow midshipmen, Stockton was deeply disappointed not 
to have been able to take an active part in the naval actions o( the Civil War. 
Doing that had been the very reason to join the Navy in the first place. To a 
young man like Stockton, thirsting for action, it was of little consequence to 
have served as part of the midshipmen garrison of Fort Adams, guarding the 
entrance to Narragansett Bay, or serving in the Naval Academy's practice 
vessels when they had been placed on alert for possible raids from the 
Confederate raiders they never sighted: Fbrida, Tacony, and Tallahassee. 
Nevertheless, such service was enough to qualify Stockton and his classmates 
in the Naval Academy class of 1865 to wear the Civil War medal, to give them 
all the retirement benefits from that war, and make them eligible to be original 
members of the Military Order of the Loyal Legion. 

In the summer of 1865 the Naval Academy was ordered to return to its 
original home in Annapolis, Maryland, despite protests from Rhode Islanders, 
who wanted it to stay in Newport. Stockton was on USS Marian when she was 
towed from Gardiner's Bay off Long Island to the mouth of the Pawtuxet River 
in Chesapeake Bay, where the midshipmen briefly went ashore. There they 
found a variety of fresh fruits, fish, oysters, and game for the taking, things that 
the wartime economy of New England had denied them, luxuries that now 
seemed food for the gods. The event proved more than an escapade to 
Stockton, who apparently contracted malaria during that run ashore. The ship 
proceeded to Annapolis, and Stockton transferred to the steamer Winnipec, his 
quarters for the remainder of his days at the Naval Academy. After passing 
final examinations, the Academy class of 1865 was graduated at the end of 
September, and Stockton returned to Phoenixville to await orders to sea duty. 

Within a fortnight the Navy Department ordered Stockton to the steam 
sloop USS Dacotah, where he was joined by four Academy classmates. During 
his first three months on board Dacotah he had two bouts of malaria. The Navy 

xxii 



John Hattendorf 



Department placed Stockton on sick leave, and then on limited duty. 
Returning to full seagoing service some months later, he first served in the USS 
Sabine, where the commanding officer attested to the "fine bearing and 
intelligence" of Stockton, "a young officer full of promise." 7 From there he was 
ordered in May 1866 to join the commissioning crew of the screw steamer USS 
Chattanooga. Built at Cramp's shipyard in Philadelphia, she was a long wooden 
vessel designed during the war to pursue and capture Confederate raiders, but 
her experimental direct-acting engines gave difficulties. In the midst of trials, 
in which the ship failed to live up to expectations, an epidemic o( what 
appeared to be cholera broke out among the crew, and the Navy permanently 
laid her up. 

After that inauspicious beginning, Stockton transferred to the USS 
Mohican, then being repaired at Boston and a sister ship o{ his first ship, the 
Dacotah. Stockton remained onboard Mohican for nearly three years. Upon her 
recommissioning after the yard period, the ship sailed for duty on the Pacific 
Station in September 1866, stopping enroute at St. Thomas in the Virgin 
Islands, several ports in Brazil, Montevideo, and then passing through the Cape 
Horn inside passage to Valparaiso, joining the Pacific Squadron at Callao, 
Peru, in April 1867. 

Stopping at the island of Maranhao on the northern coast of Brazil to coal 
ship, Stockton witnessed his first practical situation in international law, in a 
case that he later used at the Naval War College to illustrate the need for naval 
officers to include international law in their daily professional knowledge. One 
of the ship's boats, under the charge of Midshipman George Talcott, was lying 
alongside a stone jetty waiting for orders. Bored, several oi the boat's crew 
jumped off the boat and ran into town. Talcott pursued and fired a revolver at 
them in an open, crowded street. The local authorities quickly arrested Talcott 
for violating the law and held him at the police station. The commanding 
officer of the Mohican, Commander Edward Simpson, disregarding the legal 
issues, demanded that local authorities immediately release Talcott and 
threatened to bombard the city if they refused to comply. When news q{ this 
reached the Brazilian capital, the U.S. ambassador, Watson Webb, 
immediately requested that the Navy Department relieve Simpson for his 
high-handed conduct. In the end, the affair quieted down; municipal officials 
returned Talcott to his ship, and Mohican proceeded on her passage to the 
Pacific without further diplomatic delay. Stockton, however, never forgot the 
incident. 

From the rendezvous at Callao, Mohican sailed to Acapulco and, eventually, 
San Francisco. Stockton's ship was homeported there and assigned to the 

xxiii 



Stockton, the War College and the Law 



newly established North Pacific Station, which stretched as far north as the 
mouth of the Mackenzie River on the Arctic Ocean. Stockton particularly 
enjoyed California, which in the days following the Gold Rush had become a 
haven for many who were trying to recover fortunes lost during the Civil War. 
Stockton made a number of close friends, enjoying the cultivated social life 
that these permanent residents had created. 

When the Mohican was decommissioned and went into repairs at the Mare 
Island Naval Shipyard, Stockton and his fellow officers were transferred to the 
iron-hulled, steam gunboat Mohongo. Stockton was on board the ship during a 
seven-month diplomatic mission to the Kingdom o{ Hawaii, during which she 
received on board King Kamehameha V, Dowager Queen Emma, the 
American minister, charge d'affairs, and other officials. He closely observed the 
practice of diplomacy in the overtures that Americans were making to the 
Hawaiian government, as the ship cruised throughout the Hawaiian chain, 
carrying officials, patrolling, and making hydrographic surveys. 

Returning to San Francisco in April 1868, Mohongo received a new 
commanding officer, Commander Stephen B. Luce under whom Stockton had 
been trained in seamanship at the Naval Academy. Under Luce, Mohongo 
cruised in the Gulf of California, visiting such Mexican ports as La Paz, 
Mazatlan, Guayamas, Acapulco, and San Bias. During that cruise, one event 
particularly stood out in Stockton's memory. Because commercial shipping was 
both unreliable and irregular from Mexico, it was the practice for commanding 
officers of both British and American warships to carry silver (a major Mexican 
export) as freight, with a percentage given to the captain, the admiral, and the 
naval pension fund. Mexican law allowed silver dollar coins to be exported, if a 
tax were paid, but prohibited the export of silver bars. At Mazatlan the ship 
received nonetheless both bags of silver dollars and quantities of silver bars for 
shipment to banks in San Francisco. Stockton recalled, "A canoe laden with 
bars of silver would steal alongside and a loud whisper of 'plata' was heard and 
then a treasure net duly buoyed and lowered and the silver hoisted on board 
and stowed in the storerooms of the cabin of the Captain." It was, he thought 
"an unsatisfactory and not a dignified proceeding." 8 

Detached from Mohongo when the ship was laid up for extensive repairs, 
Stockton and his fellow officers moved their quarters to the receiving ship 
Vanderbilty ostensibly assigned to the USS Ossipee. The Navy Department soon 
ordered Stockton to return to the East Coast by rail. He traveled in a party that 
happened to include William B. Ogden, the president of the Chicago and 
Northwestern Railroad, and his family, enjoying their conversation and joining 

xxiv 



John Hattendorf 



them with the picnic-basket dinners that a San Francisco Hotel provided, 
including "an excellent red wine for the sandy deserts of Nevada and Utah." 9 

Returning home to Phoenixville, Stockton soon received orders to the 
Philadelphia Navy Yard, where he served for only a few months before being 
ordered to sea again. Joining the screw sloop USS Congress on her first voyage, 
he remained as a watch officer for four years, the longest service he spent in any 
one vessel during his career. On her first deployment she was the flagship of 
Commodore Joseph F. Green, commanding the South Atlantic Squadron, 
based at Key West. 

Stockton was in Southern waters when the Franco-Prussian War broke out 
and the German gunboat SMS Meteor, under Lieutenant-Commander Eduard 
von Knorr, engaged the French corvette Bouvet off Havana in an indecisive 
action on November 9, 1870. The German ship remained in that neutral 
harbor for the rest of the war. Shortly after returning to Key West, Congress 
sailed to Santo Domingo, where the ship remained through the months in early 
1870 during which President Ulysses S. Grant considered its annexation. The 
ship carried the U.S. commissioners to various points in the country, providing 
and supporting an armed party ashore to guard against insurgent attacks 
against the government during the negotiations with the United States. 

In 1871 Congress sailed for New York, where she served as flagship for Vice 
Admiral Stephen Rowan to receive the Grand Duke Alexis and a squadron of 
Russian ships. Following this formal diplomatic assignment the ship sailed to 
Godhavn on the island of Disco, off western Greenland, taking supplies to the 
USS Polaris, which Captain Charles F. Hall was preparing for exploration in the 
Arctic. Returning south, Congress made a cruise to Haiti in early 1872 before 
being ordered to join the Mediterranean Squadron. There Stockton observed 
another telling situation in international law. When Rear Admiral James 
Alden ordered the Congress to sail to Constantinople in the wake of 
anti-Christian riots that threatened the lives of American missionaries, the 
U.S. Minister, George Boker, found that the Ottoman government would not 
allow the three-thousand-ton warship to enter the Dardanelles, because that 
government's policy was to bar passage to all but small warships, under eight 
hundred tons. Diplomatic negotiations had been going on over this issue for 
years, but Admiral Alden was unaware that State Department authorization 
was necessary before sending a warship to the Dardanelles. Completely 
insensitive to international law, Alden's view was that he was under orders to 
protect Americans and that since Constantinople was one place where rioting 
was taking place, he would provide protection there. 10 Stockton clearly saw 
that the issue was not that simple. For him, it was further personal experience 

xxv 



Stockton, the War College and the Law 



of the need for naval officers to study and to understand the practical 
applications of international law. 

Detached from Congress, Stockton returned home on leave of absence until 
October 1873, when he served at the Philadelphia Navy Yard and on board 
USS Dictator before joining the commissioning crew of the USS Swatara, a new 
ship being built at the New York Navy Yard (under the guise of "repairs" to an 
older vessel of the same name). Upon her completion Swatara departed from 
New York in June 1874 to take five scientific parties to the South Pacific for 
observations of the transit of Venus, leaving them on Tasmania, Kerguelen 
Island, New Zealand, Chatham Island, and Melbourne, Australia. Upon 
completion of their work she collected her passengers and returned to New 
York, via the Cape of Good Hope, in May 1875. n On this round-the-world 
cruise, Stockton served as senior watch officer. His commanding officer later 
reported to the secretary of the navy that he was "one of the most reliable, 
trustworthy and gentlemanly officers in the service." 12 

After detachment from the Swatara, Stockton returned home to marry 
Cornelia Carter of New York on June 23, 1875, before moving with her to 
Washington, D.C., where he had orders to spend the year 18754876 at the 
Hydrographic Office. During this period his wife gave birth to a daughter 13 but 
died in childbirth on July 1, 1876, just after Stockton had received orders. His 
new assignment was the wooden-hulled screw steamer USS Plymouth, 
operating on the Atlantic coast and in the Caribbean. Not aware of the 
personal tragedy Stockton had experienced, one of the midshipmen 
remembered Stockton as Plymouth's "navigator. Silent and scholarly, he kept 
much to himself." 14 At the end of that tour of duty the commanding officer 
reported that "in everything that goes to make an efficient naval officer, Mr. 
Stockton excels." 15 

In June 1879 Stockton reported for duty at the Navy Yard in New York, 
where he served for a year. While in New York he met Pauline Lentilhon King, 
a daughter of Peter Vandervoort King, and married her on November 23, 1880. 
Detached from the Navy Yard in May 1880, he went first to Newport, Rhode 
Island, where he took the course of instruction at the Naval Torpedo School on 
Goat Island, and from there to the Washington Navy Yard. 

The Navy Department next ordered Stockton to sea duty as executive 
officer in USS Iroquois, a screw steamer which had just been re commissioned 
after a long period of inactivity at Mare Island Shipyard in California. During 
Stockton's assignment on board, the ship cruised widely on the Pacific Station, 
ranging from ports in South America to Hawaii, Australia, and the Pacific 
Islands. At the very end of Stockton's tour, the ship participated in the 

xxvi 



John Hattendorf 



American intervention in Panama, where revolution had blocked the free 
transit of the isthmus that had been guaranteed to the United States under a 
treaty with Colombia. On March 26, 1885, the USS Galena landed a force at 
Aspinwall, which was soon reinforced by units from Shenandoah, Swatara, and 
Iroquois. A force of Marines under Lieutenant Colonel Charles Heywood and 
sailors under Commander Bowman McCalla reopened the railway and 
maintained order while Colombian troops quelled the rebellion. Stockton 
landed with Iroquois' party. This personal experience of operations ashore 
during a civil war led Stockton to examine more deeply the diplomatic and 
international law issues surrounding naval intervention and American 
interests in a transoceanic canal. 

Upon his detachment from sea duty, Stockton spent several months on 
leave in Phoenixville and then traveled to Washington, where he took up a 
three -and -a-half -year assignment in the Bureau of Yards and Docks. During 
this period he assumed a variety of duties and developed interests that stayed 
with him for the remainder of his life. Coming as he did from a family with a 
long-standing interest in charity and church work, he became a devout 
member of St John's Episcopal Church on Lafayette Square. He was also a 
member of the Board of Trustees of the Church Orphanage, and of the Board 
of the Navy Mutual Aid Association. 16 In the light of this background, it is not 
surprising that Stockton became particularly interested in one organization 
that came under the purview of the Bureau of Yards and Docks: the 
Philadelphia Naval Asylum, an early attempt to address the welfare of retired 
and disabled seamen. His interest in this subject led to his first two 
publications, a thirty-seven-page pamphlet on the study of the history, 
management, and function of the organization, 17 and a short article in the 
Naval Institute Proceedings on the Asylum's role in providing service pensions 
to enlisted men. 18 

Through this connection, he began to take an active role in the Naval 
Institute and its activities. Expressing one of his interests in a discussion group 
on the Prize Essay for 1887, he commented that there was a great need to bring 
Navywide coordination to the many requirements for education and training 
within the service. 19 Shortly afterwards, the Naval Institute asked him to be 
one of the judges for its Prize Essay contest in 1888. 20 Through these activities 
he quickly became known in the service as a writer and thinker, devoted to 
furthering professional development in the Navy. 

Among his official duties as a lieutenant commander in Washington during 
the years 1885-1888 was serving on a board to examine naval drills and 
exercises, on another to review and revise the naval signal book, on a third to 

xxvii 



Stockton, the War College and the Law 



select the site for a new timber dry-dock at Norfolk, Virginia, as well as on the 
board of examiners at the Naval Torpedo School. The dry-dock site-selection 
experience resulted in his second contribution to the Naval Institute 
Proceedings, an essay on the use of the Simpson method for constructing timber 
dry-docks in the United States, from their introduction at Boston in 1853 to 
the most recent one at St John's, Newfoundland, in 1884. 21 

For his own career, certainly one o{ the most significant temporary 
additional duty assignments was to be sent to the President of the Naval War 
College, Captain A.T. Mahan, in response to Mahan's request for someone 
from the Navy Department to lecture on "Commerce and Commercial Routes 
between Europe and the Pacific." Returning to Newport in 1887 for his first 
visit to the three-year-old Naval War College, Stockton spoke on the possible 
effects that a trans-isthmian canal would have on this trade, along with a 
survey of the political and military conditions in the Pacific, Gulf of Mexico, 
and the Caribbean regions. His lecture was very well received. Mahan and 
others at the College reported so enthusiastically about his performance that 
Rear Admiral Luce, then commanding the North Atlantic Station, wrote 
personally to commend Stockton for his "admirable lectures" and to ask him to 
save his notes so that he could repeat the performance in the following 
academic year. 22 With Luce's assistance, Stockton was able to improve his 
lectures further by obtaining the latest reports on facilities in the Caribbean 
and the Gulf. 23 Building on his own earlier experience in the USS Iroquois at 
Panama in 1885, Stockton produced a body of research on this subject to which 
he repeatedly returned in later lectures and writings; the historical, strategic, 
and commercial aspects of the Pacific and Central America became a subject of 
special study. He soon became known within the service as one of the Navy's 
foremost authorities on the Canal and the Caribbean area. 24 

Returning to Washington, Stockton resumed his duties with the Bureau o( 
Yards and Docks. After serving on a board to consider costs for dry-docks at 
Brooklyn, New York, and Portsmouth, Virginia, he was assigned in November 
1888 to a board established to find an appropriate site for a navy yard in Oregon 
or in the territories of Washington or Alaska. Stockton was the junior member 
of the three -officer commission, which included Commander Colby M. 
Chester and Captain Mahan, who was temporarily detached from the Naval 
War College to serve as its head. 

Mahan, Stockton, and Colby traveled first to San Francisco and then north 
to Portland, the Columbia River, and Seattle to examine possible sites. 
Considering all the strategic and logistical issues involved for a naval base that 
would defend American territory above forty-two degrees north latitude, the 

xxviii 



John Hattendorf 



three commission members obtained the cooperation of a Coast Survey vessel 
to view, compare, and contrast a variety of possible sites. After careful 
consideration, they selected Point Turner — the site of the future Puget Sound 
Navy Yard. 25 

Command at Sea 

Toward the end of March 1899, just as the commission was completing its 
work, the Chief of the Bureau of Navigation telegraphed Stockton, "How soon 
could you take command of the Thetis and would you like that command?" At 
the time, the Scots-built former steam whaling ship was completing a 
five-month yard period at the Mare Island Naval Ship Yard, and her 
commanding officer, Lieutenant Commander William H. Emory, had orders to 
London as naval attache. Accepting the offer immediately, Stockton reported 
that the commission had nearly completed its work and that he could report on 
board within a few weeks. Soon after Stockton arrived, a telegram arrived 
reporting that Emory's orders might be canceled and asking whether Stockton 
would swap orders and take the USS Pinta, while Emory returned to Thetis. It 
was a chance that Stockton would not take, and he refused the offer. 26 On 
April 20, 1889, Thetis sailed out oi San Francisco Bay with Stockton in 
command, to perform surveys in Alaskan waters and to protect American 
commercial and whaling interests in the Bering Sea and Arctic Ocean. 

Later in 1889 Thetis called at several Eskimo villages. Deeply moved by his 
encounters with the native peoples of the North, Stockton recorded in his 
journal an episode of a visit to Cape Prince o( Wales that reflected a 
contemporary outlook: "During the morning I had a conference with some [of] 
the leading natives. . . . Told them what I wanted to communicate . . . that they 
had a bad reputation, and that if they maltreated white men they would be 
punished, but if they treated white people who were ship-wrecked properly 
they would be rewarded." 27 Appalled by the social conditions there and 
elsewhere in Alaska, he commented, "What a Pity nothing is done for the 
elevation of these people." 28 In particular, he became interested in the Eskimo 
village of Tigara, near Cape Hope on the Bering Sea. "Although under the flag 
of the United States," Stockton wrote in describing this place, "there was 
nothing but chaos and paganism." 29 Acting on his reports, the Navy 
Department ordered Stockton to establish a house of refuge at Port Barrow. In 
connection with this duty Stockton wrote to the Board o{ Missions of the 
National Council of the Episcopal Church, urgently recommending that they 
send a missionary to the area. The Board of Missions was so impressed by 

xxix 



Stockton, the War College and the Law 



Stocktons direct plea that they immediately sent out Dr John B. Driggs, who 
would distinguish himself by many years of missionary service at Cape Hope. 30 
In another initiative, Stockton arranged for the U.S. Department of the 
Interior's Bureau of Education to circulate fifty copies oi printed Eskimo 
language vocabularies to missionary schools at Point Barrow, Point Hope, and 
Cape Prince of Wales. 31 In the course of these activities Stockton became 
deeply interested in the history of the region, and the Alaska Historical Society 
elected him an honorary member. 32 

Meanwhile, Stockton and his ship were also carrying out their primary 
duties. One of the most important of these was oceanographic and 
hydrographic survey work. On this cruise Thetis became the first U.S. 
government vessel to reach Mackenzie Bay in Canada. She made the return 
passage from Mackenzie Bay to Herald and Wrangel Islands in one season, 
which had never before been done, and became the first vessel of any kind to 
follow the entire coast of Alaska, from Port Tongass in the extreme southeast 
to Demarcation Point on the Arctic Ocean, the northern border between 
Canadian and United States territory. 33 In the course of this cruise, the officers 
of the Thetis made a careful examination of ice movements on the Bering Sea 
and in the Arctic Basin. Their work earned them special praise from the 
Hydrographer of the Navy, who in a circular letter to the entire Navy 
distributing the published results, reported that Stockton and his officers had 
greatly contributed to knowledge of the waters and coasts of northwestern 
Alaska and that "the recent cruise of the Thetis has been remarkable as it has 
been successful." 34 

After her five month cruise Thetis returned to Mare Island for a repair period 
before sailing to the Central American coast, still under Stockton's command. 
Stockton prepared an article on the Arctic cruise for the new National 
Geographic Magazine and another for The Overland Monthly, on the growth of 
the new Navy. 35 In the latter article Stockton revealed his fundamental belief 
in the need for a strong navy to maintain international law and to promote the 
peaceful settlement of international issues. While the idea of transferring issues 
of national dignity and self-preservation from the arena of war to courts of 
justice appealed to him, he also saw how monopolies and arbitrary trusts had 
used bribery and corruption to defend themselves in domestic courts. 
"Arbitration is practiced between equals," he wrote; " a stronger power with a 
wrong to redress or an aggressive policy to enforce will not stop for measures of 
arbitration." 36 

Meanwhile, a revolution had broken out in El Salvador; the government of 
Francisco Menendez had been overthrown by the army commander, General 

XXX 



John Hattendorf 



Carlos Erzeta. The revolutionaries had driven the forces of the government 
into Guatemala, and war had broken out between the two countries. 
Stocktons assignment was to cruise the coasts of Guatemala and El Salvador 
and protect American interests from harm. In the course of this duty between 
July and October 1890, Stockton and Thetis called several times at La Libertad 
and Acajulta in El Salvador, at La Union and Ampala in Honduras, and at San 
Jose in Guatemala. Praising Stockton's work, the American envoy in Central 
America, Lansing Mizner, valued the ship's presence "in the critical juncture of 
the [official] mediation on the part of our Diplomatic Corps to restore peace to 
the hostile republics of Guatemala and Salvador." 37 Assistant Secretary of the 
Navy James Soley forwarded to the Secretary of State his own praise for 
Stockton's success in "obtaining redress from the government of Salvador for 
the indignation offered to the U.S. flag in the capital oi that country." 38 Upon 
returning from Central America for a repair period at the Mare Island Naval 
Shipyard, Stockton received orders to report for shore duty at Newport, Rhode 
Island. 

The Naval War College 

When Mahan had been detached on temporary duty from the Naval War 
College in January 1889 to head the commission that selected the site for the 
Puget Sound Navy Yard, those who favored technical training over the 
education in political-military affairs being offered at the College had taken 
advantage of his absence. For the moment, the Naval War College's strongest 
and most effective supporters were all exiled. Mahan's departure for the distant 
northwest coast came at the exact moment that the founder of the College, 
Rear Admiral Stephen B. Luce, retired from active duty after serving as 
commander in chief of the North Atlantic Squadron. In the last months of 
President Grover Cleveland's administration, Secretary of the Navy William 
C. Whitney ordered the Naval War College course shortened and 
recommended to Congress that it be consolidated with the Naval Torpedo 
School on Goat Island under the Bureau of Ordnance. Such an attempt to 
subject the broad political-military interests of the College to the scientific and 
technological concerns of submarine ordnance was clearly a plan to kill the 
Naval War College. Its opponents could see no practical value in an 
educational institution that focused so strongly on history, case studies, and 
theory, encouraging its faculty and students in independent and creative 
thought, and providing them large amounts of free time, without specific 
assignments or detailed work plans, to undertake individual reading and 

xxxi 



Stockton, the War College and the Law 



writing in broad areas of professional interest. Acting in effect to replace this 
approach with the type of lectures used for basic technological training, 
transmitting large amounts o( information through rote learning, the Navy 
Department even moved the College from its original home on Coaster's 
Harbor Island to nearby Goat Island, where the Torpedo Station was located. 
To consolidate its position, the Navy Department persuaded the outgoing 
Congress in its very last days in March 1889 to allocate $100,000 for a new, 
purpose-built building on Goat Island for the joint use of the College and 
Torpedo School. In the eyes of the Naval War College's supporters, this move 
clearly spelled its end. 

The orders were given and duly carried out. However, as chance would have 
it, the ordnance officer in charge of the Torpedo Station, who would have been 
expected to kill the College by amalgamating it into the Station's technical 
work, happened instead to be an ally. He was not only a personal friend of 
Admiral Luce's, but the very officer whom Luce had chosen five years before as 
the junior member of the board that had created the Naval War College, 
selected its original site, and established its first curriculum in 1884: 
Commander Caspar Goodrich. As he recalled many years later, the College 
"fell in friendly hands, and I made a point of honor of keeping it alive." 39 With a 
good friend on the local level to maintain breath in the institution, Admiral 
Luce turned his attention to the state and national level, working to gain 
support for the College. In particular, he enlisted the strong support of Rhode 
Island Senator Nelson Aldrich, while making appeals to key members of 
President Benjamin Harrison's incoming administration. 

Five days after Harrison's inauguration, the new Secretary of the Navy, 
Benjamin F. Tracy, promised Aldrich his support. In his first annual report to 
Congress, Secretary Tracy declared that further direction from Congress was 
needed before construction began on the new Goat Island building. "The 
present condition o( things," he wrote, "in which the college is made as sort of 
an appendage to the Torpedo Station, under the Bureau of Ordnance, should 
be corrected. It is attaching the greater to the less." 40 

Because the situation for the College was unclear, the Navy Department 
ordered no students or faculty to the College for the 1890 or 1891 academic 
years. Goodrich remained nominally in charge while Luce and others worked 
to reverse the previous administration's policy. In May 1890, as support for the 
College grew, Mahan published his Naval War College lectures as The Influence 
of Sea Power upon History, 1660-1783, bringing widespread attention to the 
fruitfulness of the College's first years. Shortly thereafter, in June 1890, 
Congress passed an important appropriation bill authorizing the Indiana class of 

xxxii 



John Hattendorf 



battleships. At the same time, Congress took two additional steps that soon 
had an important effect on the Naval War College. First, it authorized the 
return of the College to Coaster's Harbor Island and the construction o{ the 
new building there. Secondly, it revived the post of Assistant Secretary of the 
Navy, a position that had lain dormant for the nearly thirty years since 
Gustavus Fox left office after the Civil War, and it placed the College directly 
under the Assistant Secretary. To fill this new position Secretary of the Navy 
Tracy appointed James R. Soley, who had been the first civilian faculty member 
at the Naval War College and, from 1885 to 1888, its first lecturer in 
international law. In this key position, Soley became the College's most 
important promoter and defender. 

The Navy Department ordered Charles Stockton to supervise the 
construction of the first new building for the Naval War College, under the 
Commandant of the Naval Training Station, Captain F.M. Bunce. Reporting 
for duty in August 1891, Lieutenant Commander Stockton was soon directed 
to take charge of the entire War College Department and to transact all its 
business. 41 Construction began on September 14, 1891, and was finished on 
May 23, 1892. Upon completion of the building that (forty years later) would 
be named Luce Hall, Stockton and his family became its first residents, moving 
into quarters in the southeast corner of the building. 

In February 1892 the Navy Department ordered Mahan to return as 
President of the College, but he preferred to remain at his home in New York 
City, where he could complete work on his next series of lectures that would 
constitute his forthcoming book, The Influence of Sea Power upon the French 
Revolution and Empire. Stockton remained in Newport in direct charge of the 
College's affairs until Mahan returned in July 1892 to open formally the 
academic year. Recalling the situation from his own point of view, Mahan 
would later write in his reminiscences, "the College slumbered, and I 
worked." 42 In fact, Mahan was largely oblivious to what was going on in 
Newport, and Stockton carried out all the practical affairs of the College with 
Mahan's blessing. While Mahan researched and wrote, Stockton oversaw 
construction of the College building and handled all its numerous 
administrative affairs. Continuing the close relationship they had developed 
during the Puget Sound Commission, Mahan and Stockton worked very 
effectively and cooperatively together. Thinking back on these years, one of 
Stockton's daughters recalled that the two men made an odd sight 
together — her father being "rather short and square, while Captain Mahan 
loomed immeasurably tall and thin above him." 43 

xxxiii 



Stockton, the War College and the Law 



In his opening address to the first group of students in the new building, 
Mahan presented a carefully worked out defense of the College and its 
educational approach. With the new battleships under construction, he 
pointed out, broad theoretical and historical studies had concrete importance 
now. "There is time yet for study; there is time to imbibe the experience of the 
past," he said. "Use the time of preparation for preparation. ... To postpone 
preparation to the time of action is not practical." 44 Handing the 
administration over to Mahan, Stockton returned to being a lecturer, revising 
and updating the lectures he had first given at the College in 1887 and 1888 on 
the subjects of "Naval, Commercial, and Political Conditions existing in the 
region affected by the [future] Inter-Oceanic Canal and the problems resulting 
therefrom," and "The Strategic Features of the Pacific." 45 Due to the heavy 
criticism the College had received and was continuing to receive, both Mahan 
and Stockton were careful to keep the College lectures focused on specifically 
naval affairs. They initially refrained from emphasizing the broader issues 
which led into the full consideration of military affairs and international law. 
While such matters were made clear during the War College course, the faculty 
was cautious in the way it presented them at the College, knowing that the 
campaign to save the College was not yet over. 

In May 1893 Mahan departed from the Naval War College to take 
command of the cruiser USS Chicago, leaving Stockton as acting President of 
the College. Having been promoted to the grade of commander less than a year 
before, he was — and still is, a century later — the most junior officer to ever 
hold the position. Stockton immediately continued the work o{ Luce and 
Mahan in defending the College. In an article for the Naval Institute 
Proceedings Stockton outlined the full rationale for the College, following 
Mahan's opening lecture a year before. Surveying the broad importance of 
studying such subjects as strategy, tactics, and naval history, Stockton added, 
"One of the most important of these specializations is that of international law, 
taught with fullness nowhere else, and whose practical utility to the Navy is 
daily demonstrated." 46 

The struggle to reestablish the College had created bitterness within the 
naval officer corps, and as a senior officer to take up its presidency Secretary 
Tracy wanted someone who could forward its goals but lacked the stigma that 
attached to its most strident supporters. He eventually settled on a Captain 
Henry C. Taylor, who had lectured at the College in 1885 and who had served 
at sea under Luce as commanding officer of the training ship USS Saratoga in 
1880-1884. A widely respected officer, Taylor fully understood Luce's vision 
for the College but was not associated with the recent political battle. 

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John Hattendorf 



Becoming the new President oi the Naval War College in November 1893, 
Captain Taylor made a number of innovative changes to the curriculum. All of 
them stressed the traditional method of inductive reasoning, which the College 
had employed in its teaching since its founding. In the area of international 
law, the College invited Professor Freeman Snow of Harvard University to 
deliver a series of twenty-two lectures during the 1894 course, to parallel the 
students' consideration of hypothetical cases of naval warfare, and to be 
published later as a manual for naval officers. Snow had been one of the 
pioneers in the case method of teaching international law at Harvard Law 
School. At that point there was no American textbook which used this 
method, and Snow had begun to develop one. 47 He already had a connection 
with the U.S. Navy, having lectured at the Naval Academy in Annapolis as 
early as 1884. 

In preparation for Snow's lectures Stockton laid out courses of reading in the 
subject 48 and wrote him suggesting topics and approaches. Stockton remarked, 
"These memoranda are based upon the experiences of naval officers graduated 
from the Naval Academy after a brief and elementary course at the Naval 
Academy, either of Kent or Wheaton, or in later days of Woolsey and Glass." 
Obliquely referring to his own early experience, he continued, "A foreign 
cruise is apt to follow after graduation and the cadet or ensign as boat officer 
may readily blunder in international law by chasing deserters through a foreign 
city, or using force in the streets to confine drunken seamen of his ship." 49 
Providing five pages of examples, Stockton gave Snow a clear picture of the 
types of issues and problems that a highly experienced naval officer often 
encountered in international law. Stockton emphasized to Snow the need for 
naval officers to understand the complicated interrelationship between naval, 
diplomatic, and consular affairs, as well as their connections to larger political, 
ethical, and moral questions. For instance, he pointed out, "questions 
concerning missionaries constantly arise. What protection are they entitled 
to — not as missionaries — but as Americans?" Again, 

Suppose a servile insurrection or the rising of a class of coolies or laborers who are 
degraded and savage. How and when does common humanity require action to 
save lives of white men and their innocent families — masters, overseers and 
employees? How justifiable is it and to what extent may be carried the landing of 
a force to protect legations and consulates? 50 

Drawing further on his own extensive experience, he asked, "What jurisdiction 
has a man-of-war over the natives of northern Alaska — for the enforcement of 
laws in localities, for the protection of traders and schools?" Nor did he forget 

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Stockton, the War College and the Law 



the law of warfare: bombardment of commercial towns in wartime, contraband, 
neutrality, stoppage of breadstuffs and food supplies to a nation whose supply is 
seaborne, telegraphic communications in wartime. "Besides broad outlines of 
principles from which knowledge unexpected cases must be met, what I have 
referred to above maybe considered an illustration of what would be needed in 
a course of lectures before officers of experience and years." 51 

For undertaking the series of lectures that Stockton outlined for him, the 
Naval War College paid Snow a thousand dollars. However, just as he was 
completing his course, Snow suddenly died. At the time, Stockton was giving 
his own series of lectures on other topics at the College, repeating his lecture on 
the Interoceanic Canal that he had given in 1887, 1888, and 1892. 52 
Thereafter he developed a number of new themes: preparation for war, 
contemporary French and British sea power, maps and charts for war, 
combined maritime expeditions, and operations in the war oi 1812. Two 
presentations, on commerce destroying and on sea blockade, touched on issues 
of international law. 53 In addition to these wide-ranging lectures, Stockton 
now arranged the first discussions on situations in international law; the 
College published the result as a twelve -page pamphlet, including Stockton's 
discussion of the situation. 54 Stockton's innovative work in creating and 
publishing international law situations for naval officers to examine and to 
consider eventually matured in 1901 as the International Law Studies ("Blue 
Book") series, of which this volume is the seventy-first. 

At the end of the 1894 course Stockton was assigned to special duty, to pick 
up where Snow had left off, editing his work for publication and expanding on 
it where needed. By the time the manuscript was completed at the end of 1894, 
Stockton had written three-quarters of the book, but he modestly attributed it 
to Snow. 55 When the Government Printing Office published the work in 1895, 
it became the College's first book-length publication in the field of 
international law. 56 In the preface, Stockton made a special acknowledgment 
to Professor S.U. Macvane of Harvard for his assistance and suggestions in 
arranging Snow's material. Thanking Stockton cordially for this generous 
compliment, Macvane wrote to him, "You overstate my share in the matter, 
however. I wish I had a small corner, somewhere between the covers, to tell 
how completely the book is your own work." 57 

In March 1895 Stockton completed a report for the Office of Naval 
Intelligence on "Strategic Features of the Maritime Provinces of Canada with a 
special view to naval or combined operations on the part of the US." 58 Later 
that same year, Stockton gave his first full series of lectures on international 
law, largely following the book he had just published. 59 In it Stockton, as he had 

xxxvi 



John Hattendorf 



done in the previous year, set forth a series of international law situations, 
posing specific cases for students to discuss and resolve. The proceedings of 
these discussions, with notes by Stockton, were published as a small pamphlet 
by the College in 1895 and distributed with the College's Abstract of the Course, 
1895. 60 

Return to Sea Duty 

Detached from the Naval War College in July 1895 immediately after 
completing his series of law lectures, Stockton took command of the 
steel-hulled, twin-screw gunboat USS Yorktown on the Asiatic Station. 
Stockton traveled first to Japan and then on to Korea, where he found his 
ship at Chemulpo (Inchon). He took command on October 22. Shortly 
before, the Korean government had been overthrown, and Stockton's 
predecessor had sent an officer and a group of seaman guard to Seoul; Ensign 
Knepper and his fifteen men were stationed at the U.S. Legation. Upon 
taking command, Stockton went to Seoul to inspect the guard, confer with 
American diplomats, and have an audience with the Korean King, Yi 
Hueng. 61 In early December President Cleveland's Secretary of State, 
Richard Olney, put an end to these activities, issuing instructions directing 
American naval officers and diplomats to refrain from interfering in the 
domestic politics of a friendly State. 62 

For the remainder o{ his period of command Stockton cruised in Yorktown, 
showing the flag in various ports in China and Japan. Toward the end of his 
tour oi duty the Commander in Chief, Asiatic Station, Rear Admiral F.V. 
McNair, made a formal inspection of Yorktown. In a detailed and extremely 
favorable report, McNair concluded that Stockton's "officers and men are 
zealous and (with good reason) are proud of their ship" — a report which earned 
Stockton a personal "Well done! " from Acting Secretary of the Navy Theodore 
Roosevelt. 63 In the fall of 1897 Yorktown sailed from Japan for San Francisco. 
Laying up and decommissioning the ship at Mare Island Naval Ship Yard in 
December 1897, Stockton returned to Newport and the Naval War College, 
expecting to resume his duties as lecturer in international law. 

Presidency of the Naval War College 

The College was not in session during the winter oi 1897-1898, when 
Stockton returned to the study of international law, but this did not slow his 
work in the subject. At the invitation of Allan D. Brown, president of Norwich 

xxxvii 



Stockton, the War College and the Law 



University in Northfield, Vermont, Stockton delivered a course of lectures to 
students there. In appreciation of his effective presentation the Executive 
Committee of the Board of Trustees appointed him the University's "Lecturer 
in International Law (to have no compensation at present)." 64 Shortly 
thereafter, with the outbreak of war with Spain in April 1898, the Navy 
Department suddenly ordered to sea without relief the President of the 
College, Captain Caspar Goodrich (who had helped save the College in 
1889-1890). In his place the Navy Department ordered Commander Stockton 
to assume duties as officer-in-charge, under the Commandant of the Newport 
Training Station. Due to the war, the Department suspended plans for the 
forthcoming class. There was little activity at the College during those months, 
but those connected with the College in Newport followed current events 
carefully. In early June 1898 Stockton was thinking about the sequel to 
Dewey's victory at Manila Bay even before the USS Charleston captured Guam 
on June 20, 1898. Reflecting on the strategic importance of the Mariana 
Islands in terms of their relationship to the sea lines of communication across 
the Pacific, Stockton wrote to Admiral Luce, "If we secure or retain a coaling 
station in the Philippines we would have San Francisco or the trans -isthmian 
canal to Honolulu, Honolulu to Guam, and Guam to the Philippines, the entire 
stretch across the Pacific with American stepping stones in the way of coaling 
stations. The north Pacific is our sphere of influence by divine right." 65 

Later in June 1898 the Department ordered Stockton to prepare a revised 
edition of Snow's lectures, since the widely read first edition o{ 1895 was 
already out of print and a new and updated edition was urgently needed in the 
fleet. By August, however, the war with Spain had ended, and the Navy 
Department was taking no action to revive the College; by all reports, the 
enemies of the College and its work were once again seeking to destroy it. 
Theodore Roosevelt had been a strong supporter of the College, but there were 
rumors that his successor as Assistant Secretary wanted to move the College to 
Annapolis, creating a "Naval University" there. Luce, Mahan, and others 
returned to take up the battle, arguing the inappropriateness of such a move. 
Meanwhile, Stockton continued his studies on international law. To obtain the 
most up-to-date information he wrote to each of the Navy's fleet commanders 
at sea, including George Dewey and W. T. Sampson, asking them for their 
views on improving and enlarging the manual of international law based on 
Professor Snow's lectures. 66 Completing this revision on 21 October 1898, 
Stockton sent the manuscript to Washington for publication by the 
Government Printing Office. 67 

xxxviii 



John Hattendorf 



Shortly after, the Navy Department issued him orders in November 1898 
appointing him — still a commander — President of the Naval War College. 
With the institution once again at a critical juncture, Stockton moved quickly 
into action, sending letters to a wide variety of influential people arguing that a 
move to Annapolis would be fatal to the intellectual purposes of the College. 
Its location away from the political influences of Washington and within reach 
of key universities and libraries were the main points of his argument, but also 
noted, "The climate of Newport is conducive to mental labor all the year, 
which cannot rightly be said of Annapolis." 68 Winning support for his cause in 
Congress, Stockton was able to keep the College in Newport despite strong 
opposition within the Navy Department. Thwarted, the Department 
nevertheless refused to assign any officers as students to the College, arguing 
that they could not be spared from sea duty and other more important shore 
assignments. Stockton expressed his strong objections to the Assistant 
Secretary of the Navy: 

I beg leave to express my regret that it is not considered practicable, from the 
present outlook, to establish a course this coming season at the College. This, 
however, is but secondary to the more serious fact that the Department considers 
the study of naval warfare at this institution outside the regular work of the 
service. In no other country is such professional work considered secondary to 
the inspection of lighthouses and the inspection and manufacture of materiel. 69 

Stockton turned to an old friend of the College, Rear Admiral William T. 
Sampson — now commander in chief of the North Atlantic Fleet — who had 
been, with Caspar Goodrich, on Luce's original board to establish the College. 
Stockton persuaded him to have the North Atlantic Fleet rendezvous in 
Narragansett Bay and so arrange his ships' schedules that fleet officers could 
attend an abbreviated course of lectures from May through October 1899. 

In years past the Assistant Secretary of the Navy had usually come up from 
Washington to give the opening address to students, but without support from 
the Department, Stockton was faced with giving the address himself. 70 The 
main subject of interest during the course was an examination and critique of 
American operations in the War with Spain, but Stockton made sure that both 
naval history and international law were included. His opening address on 
"Preparation for War" was published and distributed to the service, 7 as was his 
unsigned commentary on the international situations examined during the 
course. 7 He himself also gave additional lectures on "The Action off Beachy 
Head in 1690," an account of English joint operations directed against Puerto 
Rico and Cuba in the sixteenth through eighteenth centuries, and on the legal 

xxxix 



Stockton, the War College and the Law 



aspects of "Submarine Telegraph Cables in Wartime." 73 His lectures gained 
strong support from fleet officers for the College, which played an important 
role in thwarting the effort to move it to Annapolis. Ultimately the 
Department met the interests of those who had opposed the College in another 
way, by establishing a graduate program in engineering at Annapolis. 

During this period the subject of international law remained on Stockton's 
mind and he began to consider the possibility of a follow-on to Snow's 
lectures — what he described to the Secretary of the Naval Institute as "a 
separate work in the future upon maritime international law," a book-length 
study that would encompass the full range of the subject. 74 To his knowledge, 
nothing existed in English comparable to the works by Carlos Testa in 
Portuguese 75 and Captain M.F.T. Ortolan in French. 76 In the meantime, 
however, he forwarded his lecture on the law of submarine cables to the Naval 
Institute for publication. 77 

Shortly thereafter he sent to the Naval Institute another Naval War College 
lecture, this one on a future inter-oceanic canal. 78 In it, Stockton emphasized 
the negative effects that the 1850 Clayton-Bulwar treaty had had for the 
United States. He argued that this policy needed to be changed and that the 
United States had the clear right to build, protect, and fortify its own canal. In 
addition, he argued that analysis of the strategic geography of the Caribbean 
pointed to the importance of the Windward Passage, between Cuba and Haiti, 
as the most important avenue for access to the canal. "One cork is alone 
necessary for this bottle," 79 Stockton wrote. Despite the title of his article, 
Stockton did not see his subject in narrow geographical terms but linked it to 
broad global policy for the United States. He suggested that if the United States 
wanted to develop a sphere of influence, a naval station in Korea or in northern 
China was equal in importance to that in the Philippines. He acknowledged 
that such a base had many drawbacks: it would require many years to link it to 
any important commercial enterprise, and a very large naval capacity might be 
required to maintain it. He concluded, 

The questions that will arise about the Canal will be almost exclusively maritime 
and with the great naval powers. To meet these powers with any tone of strength 
or pretension of equality in these matters we must have a competent naval 
marine; or otherwise we will experience those interpretations of international 
law that are reserved for less vigorous nationalities and weaker naval powers. 80 

On Mahan's suggestion, Stockton took up the issue of the capture of enemy 
merchant vessels at sea. Charles Henry Butler had recently published an open 
letter to Mahan in the widely read North American Review, criticizing the 

xl 



John Hattendorf 



military value and effectiveness of capturing privately owned vessels and 
cargoes. With the thought of presenting a full view of the subject from the 
point of view of a belligerent who is aware o( the practice and principles of 
international law, Stockton replied in the same journal. He argued that in the 
case of the major commercial nations of the world, private cargoes and vessels 
had a direct connection to the ability of an enemy to conduct warfare. Thus, he 
believed, their destruction had merit as a military measure and should be dealt 
with as such; at the same time, however, he was opposed to the payment of 
prize money. Stockton turned once again to Richard Henry Dana's argument 
that the sea was res omnium, the common field of war as well as of commerce. 81 

A Naval War Code 

While Stockton was writing and dealing with these varied issues, he 
received his promotion to the grade of captain. Shortly after the academic 
course ended at the Naval War College in October, the Judge Advocate 
General of the Navy forwarded to Stockton for comment an unofficial letter to 
the Secretary of the Navy from Lieutenant Commander William W. Kimball 
suggesting that the Navy Department issue an authoritative and mandatory 
code or manual to cover all cases of international law that occur in the 
experience of a naval officer. While Stockton agreed with Kimball's suggestion 
that it would be desirable to have such a manual, he had considerable doubt 
about the practicality of producing one. "International Law is a plant of slow 
growth," he wrote, "and its usages must be commonly and internationally 
accepted. Precedents from our departments are materials for future rules rather 
than present ones and it is worse than useless to promulgate as rules anything 
which is not regarded and accepted as such by other nations." 82 A rule, he 
pointed out, no matter how comprehensive it seems, can not possibly cover 
every case or situation. "If officers are trained to rely upon the text of concise 
and crystallized rules, without reference to the spirit and principles behind 
them, I believe they will be worse off than if they relied upon the principles and 
precedents alone and their native intelligence." 83 In Stockton's view, the best 
way to achieve the goals that Kimball suggested was to ensure that officers 
studying at the Naval War College were well grounded in the broad principles 
of international law, through individual study of the treatises on the subject as 
well as by hearing lectures and studying cases that showed the prevailing usage. 
This, he pointed out, was the purpose behind the College's publication o( 
international law situations and solutions. 

xli 



Stockton, the War College and the Law 



While Stockton found most of Kimball's suggestions impractical, he seized 
on one point: "the preparation of regulations upon the laws and usage of war 
upon the sea." 84 Pointing out the precedent of the instructions for the 
regulation of land warfare that Dr. Francis Lieber had prepared for the U.S. 
Army during the Civil War, Stockton noted they had been "epoch making and 
redounded greatly to the credit of the author, the war department and the 
country." 85 Although they had been designed for the United States Army 
alone, they had become the model for similar codes in other countries, and in 
1880 the Institute of International Law had used them in formulating a code of 
the law of war on land for universal use. The Navy, however, had nothing of so 
comprehensive a nature, only a set of French instructions in 1870 and the U.S. 
Navy's General Order 492 of 1898, which dealt with some of the issues that 
should be included. The time was ripe to remedy the situation. "The results of 
the Hague conference give new matter for such a code of instructions," he 
wrote. 

Now that we are at peace with the outside world the time would be an excellent 
one to draw up in accordance with the advanced humanity of the times, a code 
that would lead the world. As these instructions would not require any 
international action, and are directed to our own service, they would be 
undisputed authority, providing always they are in accord with definitely 
established international law and usage and the dictates of humanity. 86 

Within a week after sending this letter, Stockton received direct orders from 
Secretary of the Navy John D. Long, dated November 2, 1899, directing him to 
prepare a draft comprehensive code, elaborating on the legal conventions 
established in the recent Hague Conference and embodying the laws of war at 
sea. Upon completion of this work Stockton was to submit it for approval to 
Washington. Stockton replied to Secretary Long with characteristic modesty: 

In acknowledging the receipt of this order, I cannot but state that my deep 
appreciation of the importance and responsibility of this duty, and the demands 
which it makes, leads me to enter upon it with some reluctance, but as the matter 
comes before you for final revision and approval, I trust that in its final shape the 
necessary high standards will be met. 87 

Stockton wrote immediately to Lieutenant Commander Kimball, who was 
well known at the Naval War College as an outspoken pioneer in the 
employment of torpedo boats and submarines. Additionally, in 1894-1897, the 
period leading up to the Spanish American War, Kimball was in the Office of 
Naval Intelligence; during those years he had worked closely with the Naval 

xlii 



John Hattendorf 



War College on the Navy's basic war plans and strategy for that war. In his 
letter, Stockton asked Kimball for any further suggestions he might have, 
adding the hope that he might agree to be assigned to the College while this 
work was in progress. It would, Stockton wrote, "take some time, because if 
done, it should be done properly and exhaustively, and the field is a virgin 
one." 88 Kimball, however, had only recently reported for duty as Ordnance 
Officer at the Norfolk Navy Yard, and despite Stockton's encouragement it 
would be June of 1901 before he could get orders to the Naval War College as a 
student. 

Seeing the new project as a vehicle to promote and to solidify the College as 
well as to make an important contribution to international law, Stockton asked 
the Secretary of the Navy for additional staff, arguing that he needed to be 
relieved of administrative burdens to carry out this important task. Stockton also 
requested a travel allowance so that he could consult professors at Harvard and 
use the international law library of the Boston Athenaeum, which he considered 
"especially valuable." In addition, he requested the Secretary to direct the 
Surgeon General of the Navy to give his views on the care of sick and wounded, 
and to ask the Secretary of State to provide to Stockton all the official 
discussions, proceedings, and findings of the recent Hague Conference. 89 
Building on the materials already available in Newport, he further requested the 
Navy's Judge Advocate General send him copies of all "published or unpublished 
codes of the laws of war upon sea or land, authorized or in use by any of the 
European or civilized powers." 90 In addition, he asked permission to travel to 
New York to meet with Mahan, who had been a delegate at The Hague 
Conference, and to have discussions with Professor John Basset Moore of 
Columbia University, whom he characterized as "a successor of Dr. Lieber at that 
institution." 91 Within a few weeks Stockton's requests were granted, and he was 
hard at work on the project to write a code of naval warfare. 

By February of 1 900 Stockton had reached a point where he needed the U.S. 
Army's current view of The Hague Convention. 92 Working rapidly, by spring 
Stockton had completed a first draft of the full Code, which he circulated for 
comment to three naval officers: Admiral of the Navy George Dewey, 93 
Captain A. T. Mahan, and Captain Asa Walker. Walker, who was then the 
next senior staff member at the Naval War College and had commanded the 
USS Concord with distinction at the battle of Manila Bay, provided Stockton 
with much valuable, practical advice in connection with combat operations. 94 
In addition, Stockton solicited comments from several academics: Thomas S. 
Woolsey of Yale, John Bassett Moore of Columbia, K. H. Strobel of Harvard, 
and George Grafton Wilson of Brown University. 93 Collating their comments 

xliii 



Stockton, the War College and the Law 



and obtaining their approval of his work, Stockton submitted the draft to 
Secretary of the Navy Long on May 19, 1900. 96 

In forwarding to the Secretary of the Navy the draft of his proposed 
regulations concerning the law and usage of war at sea, Stockton explained 
that he intended it primarily to be put in force by the U.S. Navy. For that 
reason and taking account of existing American laws, he included articles 
relating to privateers, letters of marque, and the capture and destruction of 
enemy property at sea. If, however, the law was to be subjected to international 
discussion, then these articles could be omitted, in view o( American 
adherence to the Declaration of Paris during the War with Spain and with the 
recent American position at The Hague Conference. 97 

In his letter to the Secretary, Stockton summarized the value of this work: 

In addition to the manifest advantages of a formulating and crystallization of the laws 
and usages of naval war (a work that has never before been attempted, it is believed, by 
another nation) , it is also hoped that this code will tend toward the amelioration of the 
hardships of naval warfare in general, and more particularly in the following respects: 

1 . By the adoption of all that is of practical value to be found in the additional 
articles proposed at The Hague to extend the articles of the Geneva Convention 
to maritime warfare. 

2. By restriction to the narrowest limits the bombardment of unfortified and 
undefended towns. 

3. By defining the status of submarine cables in wartime. 

4. By forbidding bombardment as a means of ransom upon undefended towns. 

5. By forbidding the use of false colors. 

6. By forbidding reprisals in excess of the offense calling them. 

7. By exempting coast fishing vessels from capture, where innocently employed. 

8. By incorporating the liberal allowances for vessels of the enemy at the 
outbreak of war, and for blockaded vessels, given in the General Order No. 492, 
of the Navy Department. 

9. By providing definitely that free ships make free goods. 

10. By giving all the exemption possible to mail steamers in time of war. 

xliv 



John Hattendorf 



1 1 . By exempting neutral convoys from the right of search. 

12. By promulgating the general classification of contraband of war in such a 
manner as to make an international adoption of the principles possible. 

13. By authorizing the use of the regulations for land warfare, whenever 
applicable to the Naval Service of the United States. This has not been 
heretofore officially done. 98 

During May and June 1900 the Secretary of the Navy circulated the draft 
Code in Washington. Officials at the State Department and the Navy 
Department suggested some changes and clarifications to the original draft, 
most of which Stockton accepted." The only suggestion he refused was related 
to Article 22, on privately fitted-out hospital ships, which in the draft was a 
close translation of Article 3 of the recently concluded Hague Convention. 

On June 27, 1900, in General Order 551, Secretary of the Navy Long issued 
the Code to the US Navy as a twenty-seven-page pamphlet "approved by the 
President of the United States." 1 On Stockton's recommendation, the Navy 
Department ordered the Government Printing Office to prepare a thousand 
copies of the Code, with six hundred copies to be distributed to officers of the 
service, two hundred copies for the future use of the Naval War College, 175 to 
naval stations and libraries, and twenty-five to be distributed directly by the 
Secretary and Assistant Secretary of the Navy. 101 By July Stockton had finished 
correcting the proofs, 102 and a month later he was able to send ten copies to 
foreign naval attaches serving in Washington. 103 

Within a year it began to be favorably noticed overseas. The naval 
correspondent of The Times of London wrote, "This little Code of Laws 
deserves to be noted as another product of the United States Naval War 
College, to which we owe Captain Mahan's work on sea power." 104 The Code 
also began to attract attention within the United States. By early October 1900 
the Navy Department was beginning to receive a number of requests from the 
public for copies. Up to that point both the Navy Department and the College 
had supplied copies in response to a growing number of requests, but since 
general distribution outside the service had not been contemplated, there were 
not enough copies to continue doing this. The College had already distributed 
five hundred copies to all naval officers from the Admiral of the Navy down to 
the middle of the lieutenant seniority list; shortly after, the Superintendent of 
the Naval Academy requested 125 for use in teaching cadets. With the supply 
so low, the War College recommended that another a thousand copies be 
printed immediately and that the Academy's order be delayed until they were 

xlv 



Stockton, the War College and the Law 



available. Nevertheless, with only 141 copies remaining, the Navy Department 
directed Stockton to supply one hundred copies to the Naval Academy. 105 As 
interest continued to grow in the subject, Stockton recommended to the Navy 
Department that it obtain a thousand copies of Lieber's Instructions for the 
Government of Armies of the United States in the Field and distribute them as a 
supplement to his Naval Code. 106 

Soon after completion of his work on the code of naval warfare, the Naval 
Institute asked Stockton to submit a paper for publication. He sent them a 
paper that he had read before the Military and Historical Society of 
Massachusetts on a subject that had also been the topic of an earlier Naval War 
College lecture: "An Account of Some Past Military and Naval Operations 
Directed against Porto [sic] Rico and Cuba." 107 Surveying six English 
operations, ranging from Hawkins and Drake to the eighteenth century, 
Stockton pointed out that only two had been successful. In concluding his 
essay, Stockton linked, as is the hallmark of the Naval War College, the study 
of naval history with current events: "I trust that there are other teachings in 
such historical accounts than that of self congratulation. The obligations that 
have arisen with our new dependencies are greater than any strength that 
arises from them, and it is well to study the necessities that will arise from their 
maintenance and defense." 108 

In March 1900, Stockton became the first as President of the College to take 
up the new additional responsibilities that came with the establishment of the 
General Board, a permanent body of senior officers tasked to provide 
professional advice to the Secretary of the Navy on naval operations and 
policy. As originally constituted, the Board was chaired by Admiral of the Navy 
George Dewey and included the Chief of the Bureau of Navigation, the Navy's 
Chief Intelligence Officer and his assistant, the President of the Naval War 
College and his assistant, and three additional officers to be selected. 

By the summer of 1900, however, Stockton had intimations that he would soon 
be sent to sea. Thus, the Naval War College course of 1900 was Stockton's last as 
its President. During the course, Stockton joined Mahan and others in giving 
lectures that year. He gave the opening lecture that introduced students to the 
purpose oi the course, later lecturing on "The Formation o{ War Charts" and 
finally on international law, in a series of nine lectures. In addition, he compiled 
the notes and commentary to the Annual International Law Situations, of which a 
thousand copies were printed and distributed to the service. 109 

Relieved as President of the College by Captain French Chadwick on 25 
October 1900, Stockton remained assigned to the Naval War College on 
special duty. In this capacity, he and his family went to New York City, where 



xlvi 



John Hattendorf 



Stockton began to compile cases in international law that in his judgment were 
of special interest to the naval service, but that Freeman Snow had not already 
included in his 1893 volume of Cases and Opinions} 10 In particular, he focused 
on gathering precedents and cases from recent experience in the 
Sino-Japanese, Spanish-American, and South African wars, 111 as well as some 
current topics from his own experience: American jurisdiction in the Bering 
Sea, cooperation oi civilized powers in non-Christian and semi-civilized 
countries, submarine cables, blockade, and the arrest of deserters. The Naval 
War College staff arranged and published Stockton's compilation (with some 
further additions) in 1904. 112 

On Stockton's advice, his successor at the Naval War College moved to 
promote the further study of international law in Newport. Citing Stockton's 
work during the course given in 1900, Chadwick urged that the Navy employ a 
highly qualified instructor in the subject, 

in order to make the work here not merely instructional, but developmental, by 
throwing the work of thought to a great degree upon the officer himself. 
Ordinary lectures in international law are, to officers who have been dealing with 
the subject more or less during their careers (which in the case of some who have 
attended have extended over forty years) ineffectual means in the development 
desired, unless they deal in the newer aspects of the subject, as was the case of 
some delivered last summer [with a series of lectures on "Insurgency" by George 
Grafton Wilson]. 113 

Stockton took the lead in researching new material for the College's use, 
while Chadwick moved away from the passive lecture format and replaced it 
with an active approach, using creative research and problem-solving. In 
New York Stockton had persuaded John Bassett Moore of Columbia to take 
up the position Chadwick had anounced, and the Naval War College 
employed him for this purpose at a thousand dollars a year. 114 Moore agreed 
with the method of situations and discussions as a means to "create a much 
greater personal on the part oi the officers upon whom will be thrown the 
burden of personal research." Chadwick wrote, "This method involves a 
decided stimulus of emulation and interest such as mere lectures cannot 
give." 115 Chadwick also requested additional funds to purchase books for the 
Naval War College library, to obtain additional lectures on special topics in 
law, and to distribute printed versions of the lectures and situations. "Action 
of the kind mentioned," Chadwick wrote, "would tend to link the college with 
the universities of the country and place the service in greater sympathy with our 
more thoughtful men: a thing from every point of view much to be desired." 116 

xlvii 



Stockton, the War College and the Law 



At the same time, the College found that Stockton's work, both in his 
Manual of International Law Based on Snow's Lectures and his A Naval War 
Code, was in such high demand that the College President urged the Navy 
Department to authorize immediate new editions of both works. 117 

Battleship Command 

Completing the draft of his compilation of international law cases for the 
Naval War College, Stockton then wrote a short article for Forum on the "Laws 
and Usages oi War at Sea" 118 before heading off for sea duty in the Pacific. 
Traveling to California by rail, he took passage across the Pacific. In Hong 
Kong harbor on March 11, 1901, Stockton took command of the 
eleven-thousand-ton battleship USS Kentucky, which had arrived from the 
United States on her maiden voyage only a few weeks before. In the previous 
year the U.S. government had drawn down naval forces in that area, 
decommissioning its heavy units in the western Pacific; the arrival of the 
Kentucky in the Far East indicated a clear change of policy in Washington, 119 
and Stockton's assignment to command that ship was clearly a mark oi 
approval from the Navy Department. Stockton wrote to his friend and 
successor at Newport, French Chadwick, of his arrival in Hong Kong and his 
first sight of his new command. Chadwick replied, "I am glad that you like your 
ship. You could, of course, hardly help doing so, as we have nothing better 
afloat." 120 

Shortly after Stockton took command, Rear Admiral Louis Kempf made 
Kentucky his flagship as Commander of the Southern Squadron of the Asiatic 
Fleet. A year later, his successor, Rear Admiral Frank Wildes, chose the station 
ship in Manila, USS Rainbow, as his flagship; at that point, Stockton took on 
the additional duty of Chief of Staff, Asiatic Fleet, and Kentucky, as the largest 
American warship present, became the flagship of Rear Admiral Robley Evans, 
commander in chief of the Asiatic Station. Anxious to make his command into 
an effective fighting force, Evans attempted to unite the three squadrons of the 
Asiatic Fleet and to conduct "fleet evolutions" with his sixteen ships of varying 
types and sizes. 121 Due to the incompatibility of the various ship-types, these 
exercises were not successful, but Evans had high praise for the commanding 
officer of his flagship. During drills at Subic Bay shortly after Christmas 1902, as 
Evans wrote in his published memoirs, "the handling of my flagship during this 
manoeuver was such as to bring from all who saw it unstinted praise. Captain 
Stockton showed his ability as an able and accomplished seaman." 122 

xlviii 



John Hattendorf 



During the period of Stockton's command the ship visited a variety of East 
and Southeast Asian ports in protection of American interests, including 
Manila, Olongapo, Labuan, Singapore, Chefu, Taku, Nanking, Woosung, 
Amoy, Nagasaki, Kobe and Yokohama. Stockton's journal for this period 
consists largely of a record of salutes fired, lists of distinguished callers on board, 
officers ordered and detached, and ceremonial and social events. 123 

Naval Attache Duty and Flag Rank 

Following his relief from command of the battleship Kentucky, Stockton was 
ordered to the American Embassy in London, where he served as U.S. Naval 
Attache from May 1903 to December 1905. 124 Stockton and his family left New 
York on the steamer St. Paul on 20 May 1903 and arrived in England eight days 
later, settling into an apartment at 210 Ashley Gardens. Stockton arrived in 
England at an interesting moment in the history of the Royal Navy. His two 
and a half years as naval attache spanned the period when Admiral Lord 
Walter Kerr ended his period as First Sea Lord and Admiral Sir John Fisher 
began his first term in that office. 125 Stockton was in a position to observe at 
first hand the growing rivalry between Britain and Germany, as well as Fisher's 
style of reform, first as Second Sea Lord, then as Commander in Chief at 
Portsmouth, and from October 1904, his first fourteen months as First Sea 
Lord. 

While Stockton was in London many of the leading Americans interested in 
international law met at Lake Mohonk in the Catskills to establish the 
American Society of International Law. Although he did not play a direct role 
in the formation of the Society, he was among its original members, and the 
Society invited him to give an address at the Society's first annual meeting in 
Washington in April 1907. At that meeting, on the eve of the Second Hague 
Conference, Stockton took as his theme the question, 126 "Would Immunity 
from Capture, during War, of Non-offending Private Property upon the High 
Seas Be in the Interest of Civilization?" The answer, he argued, depended upon 
"whether the execution of this war right made for the prevention of war or not. 
If it is, it is in the interest of civilization." 127 

On January 7, 1906, upon his return to the United States, Stockton was 
promoted to rear admiral. In this grade he served in Washington on a number 
of boards and special assignments: as President of the Board of Inspection and 
Survey, of the Naval Examiners Board, and of the Naval Retirement Board. In 
August 1906 Secretary of the Navy Charles Bonaparte appointed him to the 
Personnel Board, chaired by Assistant Secretary Truman Newberry. 

il 



Stockton, the War College and the Law 



Finally, when the Special Service Squadron was formed to represent the 
United States at the Bordeaux Maritime Exposition, Stockton was ordered to 
its command, in the only assignment in which he flew his flag at sea. Consisting 
of the armored cruisers Tennessee and Washington, the squadron visited a 
variety of French ports. At this time, U.S. relations with Japan were extremely 
tense. When Stockton's squadron encountered a Japanese squadron under 
Vice Admiral Ijuin at Brest, there were false reports in the press of tension 
between the crews of the two squadrons and that Stockton's ships were the 
vanguard of a fleet to be sent to the Pacific. Quashing the rumors, Stockton 
told reporters, 

The newspapers make the war scares. I haven't seen any American newspapers 
and I don't know how much of a war scare you have been making here, but 1 can 
tell you that, so far as indications I have seen are concerned, the possibilities of a 
war with Japan seems very remote. There has been absolutely nothing in our 
cruise that we have encountered to suggest that the Japanese felt anything but 
good will toward us. 128 

Stockton also told reporters that he would retire on October 13, 1907. When 
asked what he intended to do, he replied, 

I am a man with four homes and 1 am in something of a quandary as to where to 
live when my active service is over. Having married a wife from New York, it is of 
course impossible for me to live in Philadelphia, my old home. Newport has some 
claims on me, but on the whole I think 1 shall live in Washington. When a 
Congressman dies they say he goes to the Senate, and I suppose Washington is 
the heaven of retired naval officers. 129 

The London Naval Conference 

Stockton did retire from active duty in October, though he and his wife first 
took up residence after all in New York City, at 22 West 9th Street. In early 
1908 he wrote an essay on the subject of the "The Use of Submarine Mines and 
Torpedoes in Time of War," 130 a subject that had arisen for the first time at the 
Second Hague Conference and which remained o( immediate interest. While 
the rules that the conference had established on this topic did not go as far as 
he would have liked, Stockton believed that "the half loaf is certainly better 
than no loaf at all. By the next conference it is hoped that the safety of the high 
seas will be provided for in a more effective and comprehensive manner than 
the rules which were finally formulated in The Hague." 131 

1 



John Hattendorf 



Later in 1908, Great Britain called an International Naval Conference to 
frame a code of laws for naval warfare and to establish an International Prize 
Court, following the recommendations of the Second Hague Peace 
Conference. The conference was to determine as many principles of 
international maritime law as possible, and it was attended by representatives 
of the United States, Great Britain, France, Germany, Italy, Austria-Hungary, 
Russia, Spain, the Netherlands, and Japan. The United States appointed 
Stockton as its first delegate to the London Naval Conference, to be held in 
1908-1909. Professor George Grafton Wilson of Harvard accompanied 
Stockton as the second delegate, and Ellery C. Stowell was secretary to the 
delegation. 

In preparation, the Secretary of the Navy directed the Naval War College to 
consider the range of issues that might come before the conference and 
produce a set of recommendations that could be the basis for instructions to the 
American delegates. Rear Admiral John P. Merrell, President of the College, 
submitted a list of twenty-five questions to each of two committees of five 
officers apiece. The questions ranged from "What regulations should be made 
in regard to abolition, limitation and classification of contraband?" to "What 
attitude should be assumed on convoy?" and "Should ransom be allowed? 
When?" The views of the two committees were dramatically different. The first 
committee answered each of the twenty-five questions within narrow confines, 
concluding, among other things, that contraband should not be abolished and 
that ransom should not be allowed. It split over the issue o{ convoy, two 
members for the idea that neutrals convoying by their own ships were immune 
from search, and three holding that the presence of an escort flying the same 
flag did not affect the treatment of a neutral convoy. The first committee 
agreed, however, that a neutral merchant ship being convoyed by a warship of a 
different neutral nation was not exempt from search by a belligerent. 132 

The second committee took a quite different approach, choosing first to 
establish a broad policy approach, and producing a diametrically opposed view: 
"The general policy of the United States as to the rules to be advocated as a 
basis of International Law should be to bring about the adoption of such rules 
as will be most advantageous to the United States while being as little 
advantage as possible to a possible enemy of the United States." 133 The 
committee reviewed potential wars with South American nations, Britain, and 
Japan, and the committee members concluded that the United States would 
need practically all articles now considered as absolute contraband. On the 
other hand, food supply by sea was not essential to the United States; while it 
might be to an opponent, the United States could not hope to starve any first 



Stockton, the War College and the Law 



class power by cutting off its food supplies. Moreover, they felt it unlikely that 
the United States would have anything more than a small amount of 
mercantile shipping. Therefore, the second committee argued that "the 
general policy of the United States should be to the following end: (1) Abolish 
contraband. (2) Limit un-neutral service as far as possible, keeping in view that 
it would be better for the United States if no such rule existed. (3) Abolish the 
principle of continuous voyage. No discussion is needed to show that the above 
would give neutrals every advantage and that this would be very advantageous 
in case the United States being a neutral." 134 They answered the full set of 
questions along similar lines, taking the view that ransom should be allowed at 
the option of the captor and that, since contraband would be abolished, a 
verbal declaration of the convoy commander should be sufficient to verify that 
the ships under his protection had no intention to violate a blockade or to 
perform non-neutral service. 

The disparity between the two Naval War College committees reflected the 
lack of consensus on these issues within the U.S. Navy. 135 A month later, the 
State Department had formally asked the Navy Department for its views 
relating to the instructions for US delegates. After further consideration of the 
issues, Admiral Merrell replied that the positions taken in the College's "Blue 
Book" International Law Discussions, I903 136 be made part of the instructions. 
This volume was the result of an effort led by Professor George Grafton Wilson 
to adapt Stockton's 1900 Code from a purely internal regulation for the U.S. 
Navy to the basis for an international agreement to which the United States 
would be a party. 137 In addition, Merrell suggested a number of additional 
statements should be made in regard to issues that the British ambassador's 
letter of invitation to the Secretary of State of March 27, 1908, had suggested 
would come before the Conference. 138 The Naval War College formally 
recommended that the United States take the following positions: 

(a) Contraband. First, military materials, arms and other articles, solely of use 
for war, when within or destined for territory within the enemy's jurisdiction. 
Second, anything destined for the enemy's naval or military use. 

1. ... 

2. In general, the penalty for the carriage of contraband is the loss of 
freight, and delay during adjudication, and if the owner of the contraband is 
owner in the vessel carrying the contraband, the condemnation of his portion of 
the vessel. 

Hi 



John Hattendorf 



3. Neutral merchant ships, under neutral convoy are exempt from visit and 
search. 

4. The question of compensation where vessels have been seized but have 
been found, in fact, only to have been carrying innocent cargo, should be 
determined by the court in each instance upon its merits. 

(b) A vessel is liable to the penalty for violation of blockade from the time of 
her departing from neutral jurisdiction, with the intention to violate blockade, 
until the completion of her voyage. 

In case the master of a vessel receives warning direct from a government 
vessel, or it is clear that he knows of the existence of the blockade from official or 
private information or from any other source, such master shall be considered to 
have received actual notice of the blockade. 

In the following cases it shall be deemed that the notice of the 
declaration of the blockade has been received: 

1. The case in which the master of a vessel is considered to have 
received a notice of the blockade whether he has actually received it 
or not, such notice having been sent to the proper authorities of the 
country to which the vessel belongs, and there having elapsed a 
sufficient time for the authorities to notify the residents of their 
nationality. 

2. The case in which the master of a vessel is considered to have 
received a notice of the blockade, the fact of the blockade having 
been made public. 

(c) As to continuous voyage, the actual destination of vessels or goods will, as 
a rule, determine their treatment on the seas outside of neutral jurisdiction. 

(d) If there are controlling reasons why enemy vessels may not be sent in for 
adjudication, as unseaworthiness, the existence of infectious disease, or the lack 
of a prize crew, they may be appraised and sold, and if this cannot be done, may 
be destroyed. The imminent danger of recapture would justify destruction, if 
there was no doubt that the vessel was good prize, But in all such cases, all the 
papers and other testimony should be sent to the prize court, in order that a 
decree may be duly entered. 

If a seized neutral vessel cannot, for any reason, be brought into port for 
adjudication, it should be dismissed, except when the master and crew refuse to 



ini 



Stockton, the War College and the Law 



aid in bringing the vessel to a prize court, or when the vessel is guilty of unneutral 
service, in which case the vessel may be treated as an enemy vessel. 

(e) Neutral ships and persons acting in such manner as to identify themselves 
with the enemy are guilty of unneutral service, and are liable to treatment as 
belligerents. 

(f) The conversion of merchant vessels into war vessels should not be allowed 
on the high seas. 

(g) The transfer of vessels, when completed before the outbreak of war, even 
though in anticipation of war, is valid if in conformity to the laws of the state of 
the vendor and of the vendee. 

The transfer of a private vessel from a belligerent's flag during war is 
recognized by the enemy as valid only when bona fide and when title has fully 
passed from the owner and the actual delivery of the vessel to the purchaser has 
been completed in a port outside the jurisdiction of the belligerent states in 
conformity to the laws of the state of the vendor and of the vendee. 

(h) The domicile of the owner should be the dominant factor in determining 
the treatment of property in time of war, though a strict rule to this effect would 
be open to many exceptions. 139 

In their official instructions, Stockton and Wilson were directed, 

As to the framing of a convention relative to the customs of maritime warfare 
you are referred to the Naval War Code promulgated in General Order No. 55 1 
of the Navy Department of June 27, 1900, which has met with general 
commendation by naval authorities throughout the civilized world and which in 
general expresses the views of the United States, subject to a few specific 
amendments suggested in the volume of international law discussions of the 
Naval War College of the year 1903, pages 91 to 97. The order putting this code 
into force was revoked by the Navy Department in 1904, not because of any 
change of views as to the rules it contained, but because many of those rules, 
being imposed upon the United States by the order, would have put our naval 
forces at a disadvantage as against the forces of other powers, upon whom the 
rules are not binding. The whole discussion of these rules contained in the 
volume to which I have referred is commended to your careful study. 140 

The two delegates to the London Conference, Stockton and Wilson, hardly 
needed further study of this volume. Nevertheless, the explicit mention of this 
volume in the orders gave a formal affirmation to their earlier work and to the 
effort of the Naval War College in this area. 

liv 



John Hattendorf 



Two months before the conference began, Foreign Secretary Sir Edward 
Grey suggested to the United States that the American and British naval 
delegates meet before the conference and come to some practical agreement 
on the questions under discussion, creating a joint position on common 
Anglo-American interests. Stockton went to London, although at that point 
he had no formal instructions beyond the views that the Naval War College 
had provided. There he met with Admiral Sir Edmond Slade and Admiral Sir 
Charles Ottley, both of whom Stockton had known from his days as a naval 
attache. The British representatives seem to have misinterpreted Stockton's 
natural reticence for agreement. In his private diary, Slade described Stockton 
as "deaf & not very quick" but "very conciliatory." Slade had the impression 
that the United States would "support our views throughout." 141 In fact 
Stockton was at the time writing to Washington that "practically the only 
thing of any importance between our precedents and rules and that of the 
British of consequence is the right of search of vessels under convoy of vessels 
of war. I told them that we could not concede that right — from mere 
self-respect — and I was assured that they were willing to give that up as they 
stood alone in that matter." 142 President Merrell o( the Naval War College 
agreed that the United States should stand firm on the convoy issue, asserting 
further that "anything, no matter what its character, destined for the use of the 
enemy's military or naval forces, is contraband." 

When the conference convened the State Department maintained the 
American position, often refusing to compromise. The issue of contraband 
became a particularly divisive one, as did the doctrine of continuous voyage. 
British expectations that the United States would follow its lead and 
compromise evaporated quickly. The British became exasperated with its 
inflexible stance in attempting to gain international approval for the Naval 
War Code; Slade confided to his diary, "The Americans are impossible and 
there is a strong probability of their wrecking everything." 143 Going even so far 
at one point as to walk out of the Conference, Stockton finally succeeded in 
getting removed from the declaration an article declaring that absolute 
contraband could be condemned only when the captor provided absolute proof 
of enemy destination. The United States agreed to maintain the doctrine of 
continuous voyage for absolute contraband and blockade, but to abolish it for 
conditional contraband. Stockton joined the other delegates in signing the 
final document of the Conference, the seventy-one articles of the Declaration 
of London Concerning the Laws of Naval War of 26 February 1909. Despite 
these efforts, no State would ratify the Declaration when the British parliament 
refused to approve it. Nevertheless, it was applied by the participants in the 

lv 



Stockton, the War College and the Law 



Turcoltalian of 1911, the Balkan Wars of 1912-1913, and with modifications 
by the French and British between 1914-1916 during World War I. 

In April 1909, shortly after the London Naval Conference, Stockton would 
summarize its work in an address to the American Society of International 
Law. Taking pride in the work of the American delegation, he pointed out that 
Chapter One of the Convention on blockade in time of war codified and 
crystallized what had been the American practice and jurisprudence on that 
subject. 144 He explained the compromise whereby the United States had given 
up the doctrine of continuous voyage for blockade and conditional contraband 
in order to obtain agreement with its application to absolute contraband, a 
view several nations accepted at the Conference for the first time. 145 Several 
attempts had been made during the conference to revive the old "Rule of 
1756," which would treat as an enemy merchant vessel any neutral engaging, 
with the consent of an enemy government, in trade forbidden to them in time 
of peace. The American delegation had successfully fought these attempts, 
since in Stockton's view they might affect future development of American 
coastal trade that would follow the opening of the Panama Canal, and the 
increased trade with American possessions in the West Indies and in the 
Pacific. 146 Most importantly, Stockton pointed out, "For the first time in history 
the great sea powers — and consequently the great powers of the world — have 
agreed upon a code formulated with very considerable detail and precision, 
which settles many disputed questions of maritime warfare." 147 Despite the 
difficulty of the negotiation, it had been an accomplishment that in no small 
measure was his own, but he was well aware that there was more work to be 
done. 

In his remarks Stockton would also note that in order to smooth the way for 
American ratification of the 1907 protocol on establishment of the 
International Prize Court at The Hague, the American delegation had 
proposed that cases coming before it be considered rehearings de novo, as direct 
claims for compensation, rather than as appeals to a court that might be 
considered higher than national courts. Agreement on this point allowed the 
United States to circumvent constitutional issues which would have otherwise 
prevented ratification of that agreement. 148 

Academe, and the First World War 

Upon his return from London, Stockton and his wife settled in Washington, 
D.C. where he lived for the remainder of his life, at 2019 O Street, N.W. He 
quickly became associated with George Washington University, which 

lvi 



John Hattendorf 



awarded him an honorary doctor of laws degree in 1909, recognizing his 
contributions to international law. The following year, George Washington 
University appointed Stockton as lecturer in law and diplomacy. During 
Stockton's first year at George Washington he wrote his Manual of International 
Law for the Use of Naval Officers, first published under that title in 191 1. 149 The 
outline and approach of the new book clearly followed the model of his earlier 
1894 Manual Based upon Lectures Delivered at the Naval War College. In his 
preface to the new volume, Stockton wrote, 

My study of international law, begun at the United States Naval Academy and 
continued during my mature years at the Naval War College, convinces me that 
to no service of government is a knowledge of international law more valuable 
than to that of the navy. I might also add that, so far as my experience goes, there 
is no naval service whose members are more familiar with the tenets of the laws of 
nations than our own. 150 

In April of 1910, George Washington University elected Stockton a 
member of its Board of Trustees, and in May appointed him acting president of 
the university. During these years the university was in financial difficulty and 
surrounded by controversy. Stockton effectively set about restoring confidence 
in the university, reorganizing the administration and its finances. 151 

Despite the administrative burdens placed on him, Stockton continued his 
interests in international law. In 1912 he returned to the subject of the 
codification of the laws of naval warfare in an address before the American 
Society of International Law. Speaking at the Society's annual meeting, he 
suggested that the agreements in the Declaration of Paris, the First and Second 
Hague Conventions, and the Declaration of London provided sufficient 
material from which to form the component parts of a naval code. However, 
taken together, they left thirteen major questions that still needed to be settled: 

1. The conversion and reconversion of merchantmen and warships. 

2. The status of aliens engaged in sea trade in the enemy's country. 

3. The Rule of 1756. The status of neutral vessels engaged in wartime in 
trade forbidden them in peace time, including cabotage and petit cabotage. 

4. The use of false colors in war time by belligerent warships. 

5. The use and treatment of telegraphic cables in wartime. 

6. The immunity from capture of private property at sea. 

7. The formation of a volunteer navy. Privateering. 

8. The extension of immunities from search and detention of neutral mail 
steamers in wartime. 

9. The extension of the width of the marginal sea belt or marine league. 

lvii 



Stockton, the War College and the Law 



10. The recognition and status of insurgent warships at sea. 

11. The rules of the visits of belligerent warships in neutral ports, their 
internment, refueling and extent of their periods of return. 

12. The definite period allowed to an enemy ship in port at the outbreak of 
war or declaration of blockade — days of grace. 

13. The status of pacific blockade in regard to merchant vessels of Powers not 
immediately concerned. 152 

Stockton declared, "I think it is not unreasonable to hope and expect that at 
the next Hague Conference the beginning of a codification of the rules of naval 
warfare may be begun. The revision of this sea code will follow in the successive 
meetings after a trial which is likely to be had in the occasional, or may we hope 
for the future, in the rare occurrence of maritime war." 153 

Returning again to his long-standing interest in the Caribbean basin, he 
wrote two essays 154 in which he objected to the Panama Canal Act of 1912, 
which Congress had passed on 24 August of that year, less than ten days after 
the canal first opened for traffic. This Act exempted U.S. coastwise trade from 
payment of the canal tolls, whereas, Stockton pointed out, the Hay-Pauncefote 
Treaty had provided that the canal would be free and open to merchant vessels 
and warships of all nations on entirely equal terms. Majority opinion in the 
United States interpreted the treaty provision to mean uniformity of rates 
when charged, but Stockton pointedly argued that the phrase "all nations" 
included the United States and U.S. vessels could not be exempt from tolls. As 
one of the few Americans who had long experience with both the country's 
strategic interests and its international legal responsibilities in connection with 
the Panama Canal, Stockton's voice carried great weight. Under pressure of 
this sort, Woodrow Wilson asked Congress to repeal the Act in 1914. 

Throughout his career, Stockton was an advocate of legal equity before the 
law as well as restraint in warfare, but at the same time he remained an 
advocate of preparedness and a strong navy. Speaking at the University of 
Chicago in early 1913, on the very day that Congress made a deep cut in 
appropriations for future naval construction, Stockton declared that an 
increase in the country's naval forces would be a measure for common safety. 
"Every year should be a year of preparation and construction in the navy, so 
long as wars cannot be eliminated and armaments continue to increase. Woe 
to any country which leave its coast, its coast towns and its export trade the 
subject of injury and destruction on account of a weak navy." 155 On the other 
hand, he advocated that the United States reduce the area to which it applied 
the Monroe Doctrine, limiting it to the West Indies, the Caribbean, and the 
Gulf of Mexico. He urged that the United States establish a defense board for 

lviii 



John Hattendorf 



this area and that it create a naval program that would render it "an American 
Mediterranean, under full and perpetual control of the United States." 156 

Stockton remained keenly interested in the academic study of international 
law. In 1914, he represented George Washington University at the first 
conference of teachers on international law, organized in 1914 by the 
American Society of International Law and the Carneige Endowment. To fill 
the need for a textbook in this area, the New York publisher Charles Scribner 
and Sons asked Stockton to prepare a volume on international law to 
supersede Theodore Woolsey's study, which they had kept in print with notes 
by Woolsey's son. Stockton's new volume, Outlines of International Law, which 
appeared in late 1914, was by far the largest of his books, extending to 616 
pages in length. In his introduction, Stockton noted the great need at that 
moment for an authoritative textbook for students of law as well as for the 
general public. "The deplorable war which is being carried out at the time of 
this writing," he said, "has created many complex problems and delicate 
situations in connection with international law. It has been said by good 
authority that there have arisen more vexed questions in international law 
during the first six weeks of this war than in the entire period of the Napoleonic 
contests." 157 Stockton made a particular point of including in the book Richard 
Henry Dana's notes on recognition of belligerency and independence, which 
he had long felt were classics on the subject but had been denied publication in 
the United States since the legal dispute over Dana's 1886 edition of 
Wheaton. 158 The New York Times reviewer believed that it would get "a warm 
welcome," particularly as it appears "just at this moment, when American are 
seriously discussing important questions involving American rights and 
responsibilities thrust upon them through the operations and attitudes of the 
powers now engaged in war." 159 

As World War I unfolded, Stockton watched maritime events with great 
interest. In January 1915 a German raider captured and sank the first 
American merchantman, and in March two American vessels were lost to 
mines in the North Sea. Deeply concerned even before the United States had 
suffered serious losses at sea, Stockton set out to inform the American public 
about the issues. Writing in the widely read journal The World's Work, 
Stockton explained that "the outbreak of war automatically divides all civilized 
nations of the world into two general classes, belligerents and neutrals. . . . 
There is no choice; countries can not manage to refuse war once declared 
against them, and neutral governments must be either impartial and cannot 
shade their neutrality into either a state of sympathetic or that of unfriendly 
neutrality." 160 After outlining the development of the law, he summarized the 



lix 



Stockton, the War College and the Law 



world situation as he saw it, rehearsing the thirteen points he had earlier 
compiled as the main unsettled question in the law of maritime warfare. He 
could now add a fourteenth: the laying of floating mines upon the high seas. 
"Besides the settlement of these questions there remain glaring defects in 
connection with international law:" 

1. Insufficient means for enforcing the rules of international law and for 
enforcing and punishing infractions. 

2. The inconsistent treatment of innocent non-combatants, who are not 
allowed on the one hand to defend themselves and their homes against intrusion 
and violence of the military forces of the enemy, but who can be killed and 
maimed by surprise, if innocently occupying residential portions of defended 
towns and of certain undefended towns and places. 

3. The evasion of conventions and treaties concerning the rules of war on 
account of the non-adherence of one of the belligerents, no matter how 
insignificant the nationality may be. 

4. A common agreement as to military necessities. 161 

In 1917, Stockton prepared a revision to his Manual for the Use of Naval 
Officers, adding a supplementary chapter, an updated bibliography, an index, 
and additional documents in the appendix, notably the text of the U.S. 
neutrality proclamation. 162 The following year Stockton resigned from the 
presidency of George Washington University, though he retained his post as 
lecturer in international law and diplomacy until 1921. Recognizing his great 
success in leading the university, the Board of Trustees formally minuted that 
he had taken up the post "when the affairs of the university were at a crisis. . . . 
Its steady and peaceful growth has been the result of conservative methods 
maintained within the lines of constructive expansion. The characteristic oi 
Admiral Stockton's administration has been the firm security with which each 
step has been safely and permanently retained." 163 

Retirement 

Stockton remained active in the field of international law. From 1908 until 
1924 he was repeatedly reelected as a member of the Executive Committee of 
the American Society of International Law, and he regularly participated in the 
work of the Society. At the 1919 annual meeting, he commented on the 
Covenant oi the League of Nations and on the recommendation for an 
International Law Conference. 164 In his next published writing he made a 
careful examination of American policy and the 1856 Declaration of Paris in 

lx 



John Hattendorf 



terms of its four principal issues: the abolishment of privateering, the safety of a 
neutral flag for enemy goods other than contraband, the protection of neutral 
goods other than contraband under an enemy flag, and the idea that blockades 
in order to be binding must be effective. He concluded that while the United 
States had never signed the Declaration, taking exception to the abolition of 
privateering, it was an issue that subsequent maritime history had shown to be 
unimportant. In this area the United States followed the other doctrines, those 
declared officially during the Spanish American War, and were either literally 
included or implied in the Naval War Code of 1 900, and contained in the 1908 
Declaration of London — which he believed had exhaustively defined the 
subject of blockade. 165 In preparation for the Washington Conference in 1921, 
Stockton served on the Society's subcommittee to formulate changes to the 
laws of warfare. At the Society's annual meeting that year Stockton noted that 
the laws "have not been disclaimed even in recent wars, even if in some cases 
they were not followed to a full extent by a delinquent belligerent. The 
existence of vice does not nullify virtue." 166 In April 1923, thirteen months 
before his death, he rose for the last time at the American Society o( 
International Law annual meeting to give a brief comment on the three-mile 
limit. 167 

Stockton died, aged seventy-nine years, of heart disease at his O Street 
home in Washington on May 30, 1924. Following a funeral in his parish 
church, St. John's Episcopal Church at 16th and H streets, he was buried in 
Arlington National Cemetery. 168 

In nineteenth century America, many people considered the establishment, 
clarification, and dissemination of international law as only a branch of the 
larger field of law. Typically the men involved were either statesmen, who 
established practices and doctrine, judges, who made important decisions, and 
scholars, who contributed to the gradual evolution of education and literature 
on the topic. Although the practice o{ naval operations played an important 
role, it was unusual during this period of find a naval officer who was a 
distinguished student and writer in this period. From the 1880s to the early 
decades of the twentieth century, Charles Stockton was certainly the most 
important figure for the development of international law in the U.S. Navy. 
While he is most often remembered as the author of the Naval War Code of 
1900 and as the principal American delegate to the London Conference in 
1908-1909, which translated his Code into International Law, he had an even 
greater and wider influence within the Navy. He was a key figure in the 
institutional history of the Naval War College, nurturing and sustaining it at 

lxi 



Stockton, the War College and the Law 



critical times in its second decade. He supervised construction of its first 
purpose-built building, saved the College from dissolution in 1899, and laid the 
foundation for its continuing work on the subject of the law of naval warfare. 
On a wider stage within the Navy, his textbooks and manuals for the study of 
international law, and his initiative in promoting the practical study of 
international law through wide ranging discussions centered on situations, 
influenced generations of American naval officers as well as others interested 
in the subject of international maritime law. In addition to these achievements, 
he was an accomplished seaman, commanding the Navy's newest battleship in 
the Far East, and leading a significant voyage of exploration of Alaska and the 
Arctic. 

Several days after his death, in an editorial supplementing his obituary 
printed the previous day, The New York Times praised his contributions to 
international law and recalled that Stockton had been "a great sea lawyer as 
well as a capable and energetic officer with a credible service afloat." After 
outlining his contributions to international law and noting his reputation as 
the best-informed man in the U.S. Navy on international law, the editorialist 
offered an assessment: that he "has been compared as a naval author with 
Admiral Mahan, but the fact should not be lost sight of that Mahan preferred 
the library to the deck of a ship. This was not the case with Stockton." 169 



Notes 



1. Naval War College Archives, record group 3, box 1 73: Chair of International Law, file 
12,040. 

2. The sections on his early life are largely derived from the manuscript, Recollections of 
My Life, Afloat and Ashore, from the Beginning to My Arrival in Rio de Janeiro in 1866. Naval 
Historical Collection, Naval War College, ms. coll. 56: Stockton Papers, box 2, folder 4A 
[hereafter Recollections]. 

3. Transcription of letter from Rev. Thomas Stockton to Rev. William Stockton, (July 5, 
1861) in Recollections, supra note 2, at 15a. 

4. Davis, Nimrod, or the American Whaleman (1874). 

5. Recollections, supra note 2, at 24- 

6. Id. at 28. 

7. Letter from Commanding Officer, USS Sabine to C.H. Stockton (Feb. 20, 1866), 
Stockton Papers, box 1, folder 1. 

8. Recollections (Part 2), supra note 2, at 15. 

9. Rat 17. 

10. Still, American Seapower in the Old World: The United States Navy in 
European and Near Eastern Waters, 1865-1917, at 64-66 (1980). 

11. One shipmate wrote his memoirs of this voyage. SCHROEDER, A HALF CENTURY OF 

Naval Service 77-104 (1922). 

lxii 



John Hattendorf 



12. Letter from Captain R. Chandler to Secretary of the Navy (Sept. 14, 1881), Stockton 
Papers, box 1, folder 1. 

13. Cornelia Stockton, later wife of Captain Frederick A. Traut, USN, (1871-1958), U.S. 
Naval Academy class of 1892. 

14. Gleaves, The Admiral: The Memoirs of Albert Gleaves, Admiral, USN 23 
(1985). 

15. Letter from Captain D.B. Harmony to Secretary of the Navy (Sept. 6, 1881), Stockton 
Papers, box 1, folder 1. 

16. See letters from these boards acknowledging with deep regret his resignation from the 
boards on his assignment to sea duty in April 1889. Stockton Papers, box 1, Ale 1. 

1 7. Stockton, Origins, History, Laws, and Regulations of the United States 
Naval Asylum, Philadelphia (1886). 

18. Stockton, The Naval Asylum and Service Pensions for Enlisted Men, 12 NAVAL INST. 

Proceedings 53 (1886). 

19. Comment, 13 NAVAL INST. PROC. 541 (1887). 

20. Letter from Richard Wainwright to Stockton (Oct. 8, 1888), Stockton Papers, box 1, 
folder 1. 

21. Stockton, Simpsons Timber Dry Docks, 13 NAVAL INST. PROC. 221 (1887). 

22. Letter from Rear Admiral S.B. Luce to Stockton Qan. 4, 1888) , Stockton Papers, box 1 , 
folder 1. See also, Knight, unpublished typescript, History of the Naval War College to 1914, 
pages for 1887 and 1888, Naval Historical Collection. 

23. Lectures 2 and 3 of this series, given in 1887 and 1888 are "Strategic Studies in the Gulf 
of Mexico, Caribbean Sea, and the Pacific Ocean," Naval War College Archives, record group 8, 
series 1, box 27, file S. For an example of Stockton's sources, see the transcription of the letter 
from Commander Colby M. Chester to Rear Admiral Luce (July 9, 1888) on pp. 8-9 of lecture 2. 

24. See letter from A.T. Mahan to Horace E. Scudder (Sept. 26, 1890) in LETTERS AND 

Papers of Alfred Thayer Mahan 26 (Seager & Maguire eds., 1975). 

25. Report of the Secretary of the Navy, 1889, pt. 1, 124-67 (1890). 

26. Exchange of telegrams between Bureau of Navigation, Stockton and Emory (Apr. 
1889), Stockton Papers, box 1, folder 1. There is no hint of this in THE LIFE OF AN AMERICAN 

Sailor: Rear Admiral William Hemsley Emory, United States Navy (Gleaves ed., 
1923). 

27. Journal of the Cruise of the Thetis in Alaskan and Arctic Waters May 31st 1889 to [13 
October 1889, off Sitka], entry for July 21, 1889. Stockton Papers, box 2, folder 5, [hereinafter 
Journal] quoted in SHULMAN, NAVALISM AND THE EMERGENCE OF AMERICAN SEA POWER, 
1882-1893, at 92-93, (1995). 

28. Id., entry for Sept. 15, 1889, quoted in SHULMAN, supra note 27, at 93. 

29. Undated clipping from The Spirit of Missions, c. 1925, at 602-603, Stockton Papers, box 
3, folder 7. 

30. Letter from John W. Wood, National Council Protestant Episcopal Church, to Marcus 
Bergman, National Museum, Washington, D.C. Quly 14, 1924), Naval Historical Collection, 
Naval War College, ms. coll. 56: Stockton Papers, box 1, folder 3. See also Journal, supra note 27. 
Stockton visited Cape Hope on three occasions in this period, 4-5, 24 July, 10-20 September 
1889. For his dealings with the natives, see, in particular, pp. 150-61. 

31. Letter from Commissioner, Bureau of Education, Interior Department to Stockton 
(Apr. 11, 1890), Stockton Papers, box 1, folder 1. 

32. Alaska Historical Society certificate, Sitka, Feb. 14, 1890, Stockton Papers, box 1, 
folder 1. 



lxiii 



Stockton, the War College and the Law 



33. Stockton, Arctic Cruise of U.S.S. Thetis in the Summer and Autumn of 1889, 2 NATL 
GEOGRAPHIC MAG. (1890) [hereinafter Arctic Cruise] . The article includes a map, showing the 
track of the Thetis. 

34- Hydrographer of the Navy, Circular Letter (Jan. 2, 1890) forwarding Report of Ice and 
Ice Movements in the Bering Sea and the Arctic Basin by Ensign Edward Simpson under 
Direction of Lieutenant Commander C.H. Stockton. Report no. 92 (1890). 

35. Arctic Cruise, supra note 33, at 171, and Reconstruction of the United States Navy, 

Overland Monthly, October 1890, at 381. 

36. Id. at 384. 

37. Letter from Lansing Mizner, U.S. Legation in Central America, to Stockton (Sept. 13, 
1890), Stockton Papers, box 1, folder 1. 

38. Letter from Assistant Secretary of the Navy James R. Soley to Stockton (Sept. 10, 
1890) , forwarding letter from Acting Secretary of State W. F. Wharton to Secretary of the Navy 
(Sept. 9, 1890), Stockton Papers, box 1, file 1. 

39. Letter from Caspar Goodrich to President, Naval War College (Mar. 5, 1906) , Naval War 
College Archives, record group 1, box 3, folder 23, quoted in HATTENDORF, ET AL., SAILORS AND 
SCHOLARS: THE CENTENNIAL HISTORY OF THE NAVAL WAR COLLEGE 30 (1984). 

40. Annual Report of the Secretary of the Navy, 1889, at 37 (1890), quoted in id. 

at 30. 

41. Orders to Stockton, August 18 and October 3, 1891, Stockton Papers, box 1, file 1. 

42. Mahan, From Sail to Steam 303 (1907). 

43. Draft letter from Mrs. Helen Stockton Parker (Mrs. W. Ainsworth Parker) to Captain 
W.D. Puleston (January 1936), Naval Historical Collection, Naval War College, ms. coll. 56: 
Stockton Papers, box 2, folder 3. 

44- Mahan, The Practical Character of the Naval War College, quoted in HATTENDORF, supra 
note 39, at 32. 

45. Official Journal of the Naval War College, 1892-1895, Naval War College Archives, 
record group 1 , box 6. 

46. Stockton, Notes upon the Necessity and Utility of the Naval War College in Connection with 
Preparations for Defence and War, 19 NAVAL INST. PROCEEDINGS 407, quotation at 408 (1893). 

47. Snow, Cases and Opinions in International Law (1893). 

48. Taylor, Address Delivered to the Class at the Naval War College Upon 
the Closing of the Session of 1894, at 15 (1894). 

49. "International Law, memo of proposed subjects for lectures drawn up as a suggestion to 
Professor Snow," Naval War College Archives, record group 28: President's File — Stockton, 
Charles H. 

50. Id. 

51. Id. 

52. The text of this lecture is in the Naval War College Archives, record group 14: Faculty 
and Staff Presentations, box 1 (1886-1900). 

53. Id. 

54. Naval War College, International Law Situations (1894). 

55. HATTENDORF, supra note 39, at 41. Letter from Stockton to Lieutenant Charles 
Cooper, Naval Institute (Dec. 10, 1898), Naval Historical Collection, Naval War College, ms. 
coll. 56: Stockton Papers, box 2, folder 2: letterbox of Official Correspondence 1889-1900, at 
77, 74-75. 

56. International Law Lectures Delivered at the Naval War College by 
Freeman Snow, Ph.D., ll.b., Late Instructor in International Law in Harvard 



XIV 



John Hattendorf 



University: Prepared and Arranged for Publication by Charles H. Stockton 
(1895). 

57. Letter fromS. U. Macvane to Stockton (Sept. 13, 1894), reproduced in Recollections, 
supra note 2, at 39. 

58. ONI receipt, March 1895, Stockton Papers, box 1, folder 1. 

59. The manuscript texts of these ten lectures are in the Naval War College Archives, 
record group 15: Guest Lectures, box 1, 1894-1903. 

60. Naval War College, International Law (1895). Stockton is identified as the 

author and compiler of the International Law Situations only in NAVAL WAR COLLEGE, 
ABSTRACT OF COURSE, 1895, at 5 (1895). 

61. Miscellaneous Notes and Memoranda made during the Cruise of the Yorktown, 
1895-1896, at 19-20, Stockton Papers, box 3, folder 1. 

62. Braisted, The United States Navy in the Pacific, 1897-I909,at 17-18 (1958). 

63. Report of Inspection of USS Yorktown (September 21, 1897), Stockton Papers, Official 
and semi-official letters, box 2, folder 1. Letter from Acting Secretary of the Navy Theodore 
Roosevelt to Stockton (Oct. 28, 1897), typescript copy in Stockton Papers, signed original in 
National Archives, record group 45: area files, area 10. 

64. Letter from Allan D. Brown, President, Norwich University, to Stockton (Mar. 28, 
1898), Stockton Papers, box 2, folder 1. 

65. Letter from Stockton to Luce (June 5, 1898) , printed in LIFE AND LETTERS OF STEPHEN 

B. Luce, U.S. Navy, Founder of the Naval War College 280 (Gleaves ed., 1925) . 

66. Letters from Stockton to Dewey and Sampson (July 22, 1898), Naval Historical 
Collection, Naval War College, ms. coll. 56: Stockton Papers, box 2, folder 2: letterbook of 
Official Correspondence 1889-1900, at 10-11. 

67. A Manual Based Upon Lectures Delivered at the Naval War College by 
Freeman Snow, Ph.d, LL.B., Late Instructor in International Law in Harvard 
University (2d ed.), Prepared and Arranged for Publication by the Direction of 
the Navy Department by Commander C.H. Stockton, U.S.N. (1898). The first copies of 

the book were received from the printers in January 1899. See Letter from Stockton to Chief, 
Bureau of Equipment (Jan. 10, 1899), Naval War College Archives, record group 1, box 7, letter 
book, 1897-1900, at 238 ff. 

68. Letter from Stockton to Senator Nelson Aldrich (July 19, 1899) , Stockton Papers, box 
2, Official letter book, letter 167. 

69. Letter from Stockton to Assistant Secretary of the Navy (Feb. 15, 1899), Naval War 
College Archives, record group 1, box 6, letterbook 1899-1901, at 4. 

70. Preparation for War, Naval War College Archives, record group 16: Opening 
Addresses, 1899. 

71. Stockton, Preparation for War : A Discussion of Some of the Various 
Elements to be Considered in the Formation of Plans of Operations and in the 
Study of Campaigns, Delivered at the Opening of the Course at the Naval War 
College, Newport, R.I., May 31, 1899 (1899). 

72. Naval War College, International Law Situations 1899 (1899). 

73. The manuscripts of all three 1899 lectures are in Naval War College Archives, record 
group 14: Faculty and Staff presentations, box: 1886-1900. 

74. Letter from Stockton to Lieut. Charles Copper, Secretary, Naval Institute (Dec. 10, 
1898), Naval Historical Collection, Naval War College, ms. coll. 56: Stockton Papers, box 2, 
folder 2: Letterbook of Official Correspondence 1889-1900, at 77, 74-75. 



lxv 



Stockton, the War College and the Law 



75. Stockton read French and knew this work from the French edition: TESTA, LE DRIOT 

public internationale maritime (1886). 

76. Ortolan, Diplomatie de la mer (1864) . 

77. Stockton, Submarine Cables in Time of War, 14 NAVAL INST. PROG 451 (1898). 

78. Stockton, The American Interoceanic Canal: A Study of the Commercial, Naval, and 
Political Conditions, 25 NAVAL INST. PROCEEDINGS 753 (1899). 

79. Id. at 767. 

80. Id. at 797. 

81. Stockton, Capture of Enemy Vessels at Sea, THE NORTH AM. REV., Feb. 1899, at 206. 

82. Letter from Stockton to Judge Advocate General (Oct. 26, 1899), Naval War College 
Archives, record group 1, box 7, letterbook 1897-1900, at 314-18, quote at 314. 

83. Id. at 315. 

84. Id. at 317. 

85. Id. 

86. Rat 317-318. 

87. Letter from Stockton to Secretary of the Navy (Nov. 6, 1899), Naval War College 
Archives, record group 1, box 6, letterbook 1899-1901, at 119-21. 

88. Letter from Stockton to W. W. Kimball (Nov. 4, 1899) Naval War College Archives, 
record group 1, box 7, letterbook 1897-1900, at 319. 

89. Id. 

90. Letter from Stockton to Judge Advocate General of the Navy (Nov. 24, 1899) , in id. at 1 29. 

91. Letter from Stockton to Secretary of the Navy (Nov. 22, 1899), in id. at 125. 

92. Letter from Stockton to Secretary of the Navy (Feb. 20, 1900), in id. at 164. 

93. Letter from Stockton to George Dewey (Apr. 25, 1900), in id. at box 7, p. 375. 

94. Stockton mentions Walker's contribution in his official, annual report on the Naval 
War College. Letter from Stockton to Assistant Secretary of the Navy (Oct. 1, 1900), in id. at 
31 2, 3 14, printed in ANNUAL REPORT OF THE SECRETARY OF THE NAVY (1890) . 

95. Letter from Stockton to Professors Woolsey, Strobel and Grafton (]an. 13 and Apr. 12, 
1900) , Naval War College Archives, record group 1 , box 7, letterbook 1897-1900, at 338, 365. 

96. For a reference to the explicit approval of Woolsey and Strobel, see letter from 
Stockton to Judge Advocate General of the Navy (May 19, 1900), Naval War College Archives, 
record group 1, box 6, letterbook 1899-1901, at 244. 

97. Letter from Stockton to Secretary of the Navy (May 19, 1900), in id. at 236-40. With 
the exception of altering the wording, but not the meaning, of the first two sentences and 
omitting the final paragraph on who had reviewed the draft before it was submitted, an undated 
version of this letter was printed in NAVAL WAR COLLEGE, INTERNATIONAL LAW 

Discussions, 1903: The United States Naval War Code of 1900, at 5-7 (1904). 

98. Id. 

99. Letters from Stockton to Secretary of the Navy (June 21 & 22, 1900), Naval War 
College Archives, record group 1, box 6, letterbook 1899-1901, at 258, 261. 

100. The Laws and Usages of War at Sea, Naval War Code (1900). 

101. Letter from Stockton to Secretary of the Navy (June 28, 1900), Naval War College 
Archives, record group 1, box 6, letterbook 1899-1901, at 264. 

102. Letters from Stockton to Chief, Bureau of Navigation u ly9 & 16, 1900), at 271, 273. 

103. Letter from Stockton to Chief Intelligence Officer, Navy Department (Aug. 13, 1900) , 
in id. at 287. 

104. A Naval War Code, The Times [London], April 5, 1901. 



lxvi 






John Hattendorf 



105. Letter from Lieut. William McCarty Little to James Brown (Oct. 8, 1900) and 
endorsements to requests from the Navy Department, Naval War College Archives, record 
group 1, box 6, letterbook 1899-1901, at 329, 331, 340. 

106. Letter from Stockton to Secretary of the Navy (Oct. 8, 1900), in id. at 330. 

107. Letter from Stockton to Lieutenant E.W. Eberle (June 21, 1900), Naval War College 
Archives, record group 1, box 6, letterbook 1899-1901, at 259. 

108. Stockton, An Account of Some Past Military and Naval Operations Directed against Porto 
[sic] Rico and Cuba, 26 NAVAL INST. PROCEED. 457, 475 (1900). 

109. Summary of schedule for 1900, Naval War College Archives, record group 1, box 6, 
letterbook 1899-1901, at 323-25. On International Law Situations for 1900, see Chadwick to 
Assistant Secretary of the Navy (Nov. 27, 1900), in id. at 365. 

110. Orders from Captain F.E. Chadwick to Stockton (Oct. 27, 1900), in id. at 349, with 
reference to FREEMAN H. SNOW, CASES AND OPINIONS IN INTERNATIONAL LAW (1893). 

111. Naval War College, Abstract of the Course, 1900, at 63 (1901). 

112. Naval War College, International Law: Recent Supreme Court 
Decisions and Other Opinions and Precedents (1904) . 

113. Letter from Chadwick to Assistant Secretary of the Navy (Jan. 3, 1901), in id. at 386. 

Wilson, Insurgency: Lectures Delivered at the Naval War College, Newport, 
Rhode Island, August 1900 (1900). 

114- Letters from Chadwick to Chief, Bureau of Navigation, to Professor John Bassett Moore (Mar. 
26, 1901) and to Assistant Secretary of the Navy (Mar. 27, 1901), in id. at 475 1/2, 477, 479-^80. 

115. Letter from Chadwick to Assistant Secretary, supra note 114, at 480. 

116. Rat 388. 

117. Letter from Chadwick to Assistant Secretary of the Navy (Jan. 4, 1901), in id. at 389. 
The British ambassador requested eight copies of The Laws and Usages of War at Sea, Chadwick 
to Chief Intelligence Officer (Mar. 4, 1901), in id. at 461. 

118. Stockton, Laws and Usages of War at Sea, FORUM, February 1901, at 705-709. 

119. Braisted, The United States Navy in the Pacific, 1897-1900, at 114 (1958). 

120. Letter from Chadwick to Stockton (Apr. 22, 1901), Naval War College Archives, 
record group 1, box 7, letterbook 1900-1902, at 260. 

121. Rat 118. 

122. Evans, An Admiral's Log: Being Continued Recollections of Naval Life 
211 (1910). 

123. Journal of the Cruise of the USS Kentucky, Captain C.H. Stockton, USN, 
Commanding, March 11, 1901 [to March 1903], Stockton Papers, box 3, folder 2. 

124. Private Diary, 1904, Stockton Papers, box 3, folder 3. 

125. Much has been written about this period. See, e.g., WILLIAMS, DEFENDING THE 

Empire: The Conservative Party and British Defence Policy 1899-1915, at 59-76 
(1991); Marder, The Anatomy of British Sea Power (1940); Mackay, Fisher of 
kllverstone (1973); sumida, in defence of naval supremacy: finance, 
Technology and British Naval Policy, 1889-1914 (1989). 

126. Stockton, Would Immunity from Capture, during War, of Non-offending Private Property 
upon the High Seas be in the Interest of Civilization? 1 AM. J. INT'L L. 930 (1907). 

127. Rat 943. 

128. Newspaper clippings, Stockton Papers, box 3, folder 6: Japanese Warships Arrive in Brest; 
Americans Join French in Welcome, NEW YORK HERALD TRIBUNE, European ed., July 25, 1907, 
at 1; Quote from Stockton Back with Squadron, unidentified newspaper, vol. xxi, no. 122, New 
York, Aug. 6, 1907. 



lxvii 



Stockton, the War College and the Law 



129. Id. 

130. Stockton, The Use of Submarine Mines and Torpedoes in Time of War, 2 AM. J. INT'L L. 
276 (1908). 

131. Id. at 284. 

132. International Law, Reports of First and Second Committees, Aug. 27, 1908, Naval War 
College Archives, record group 8, series 2, box 87, file XLAI, 1908-191 1, item 1908, no. 83. 

133. Report of the 2nd Committee in id. 

134. Id. at 4-5. 

135. Coogan, The End of Neutrality: The United States, Britain, and Maritime 
RIGHTS, 1899-1915, at 113 (1981). 

136. Naval War College, International Law Discussions, 1903, The United 
States Naval War Code of 1900 (1904). 

137. Summary of Suggested Changes, in id. at 91-97. 

1 38. Letter from President, Naval War College, to Secretary of the Navy (Sept. 29, 1908) , Naval 
War College Archives, record group 8, series 2, box 87, file XLAI, 1908-1911, item 1908, no. 83. 

139. Id. 

140. Quoted in Stockton, The International Naval Conference of 1 908, 3 AM. J. INTLL. 600 (1909) . 

141. Quotations from National Maritime Museum, Slade Papers (M) 3, diary entries for Oct. 
26, 28, Dec. 1, 1908, quoted in COOGAN, supra note 135, at 113-14- 

142. Extract of Letter from Rear Admiral C.H. Stockton (Nov. 18, 1908) , with commentary 
in letter of President, Naval War College, to Chief, Bureau of Navigation (Dec. 1 2, 1908) , Naval 
War College Archives, record group 8, series 2, box 87, file XLAI 1908-191 1, item 1909, no 4. 

143. Slade diary entry, Feb. 5, 1909, quoted in COOGAN, supra note 135, at 116. 

144- Stockton, Conference of 1908, supra note 140, at 596-618, also published as Review of the 
Proceedings of the Conference in London, 1909 PROC. AM. SOC'Y INTL L. 61-84. 

145. Id. at 608. 

146. Id. at 611. 

147. Id. at 614. 

148. Id. at 616. 

149. Stockton, Manual of International Law for the Use of Naval Officers 
(1911). 

150. Preface, dated Nov. 1, 1910, in id. 

151. Undated and unsigned memo, Naval Historical Collection, Naval War College, ms. 
coll. 56: Stockton Papers, box 2, folder 4. See also Our New President: Admiral Stockton, THE 
GEORGE WASHINGTON NEWS, vol. l.no. l.Sept. 1910, at 1-2. Stockton Papers, box 3, folder 7. 

152. Stockton, The Codification of the Laws of Naval Warfare, 1909 PROC. AM. SOC'Y INTL 
L. 117-19. 

153. W. at 122. 

154- Stockton, Does the Expression "All Nations" in Article 3 of the Hay-Pauncefote Treaty 
Include the United States?, 7 AM. J. INT'L L. 92 (191 2) , and Panama Canal Tolls, 38 NAVAL INST. 

Proceedings 493 (1912). 

155. Sees Risk in Weak Navy, N.Y. TIMES, Feb. 27, 1913, at 5: 4-5. 

156. Id. 

157. Stockton, Outlines of International Law at v (1914). 

158. Recollections, supra note 2, at 38. 

159. International Law, N.Y. TIMES BOOK REV., Feb. 7, 1915, pt VI, at 41:2. 

160. Stockton, International Law of the Sea, 29 THE WORLD'S WORK 706, quote at 706 (1915). 

161. Id. at 712. 



lxviii 



John Hattendorf 



162. See Stockton's handwritten insertions for the 1917 revision in his own copy of the 191 1 
edition, Stockton Papers, box 5, file 1. 

163. Minutes of the Board of Trustees, George Washington University, upon their 
acceptance of the resignation of Rear Admiral Charles H. Stockton as President of the 
University, Stockton Papers, box 4, folder 7. 

164- Stockton, Remarks on the Covenant of the League of Nations, 1918—1919 PROC. AM. 
SOCY INTL L. 45-5 1 and Remarks on the Recommendation for an International Law Conference, in 
id. at 51-61. 

165. Stockton, The Declaration of Paris, J. AM. SOCY INTL L., July 1920, at 356. 

166. Stockton, Remarks on the Laws of War, 1921 PROC. AM. SOCY INT'L L. 100, 101. 

167. Stockton, Remarks on the Three Mile Limit, 1923 PROC. AM. SOCY INT'L L. 43. 

168. Admiral Stockton Dies in Washington, N.Y. TIMES, June 2, 1924, at 17. 

169. Sailor and Sea Lawyer, N.Y. TIMES, June 3, 1924, at 16. 



Appendix 

The Published Writings of Charles H. Stockton 

Origin, History, Laws, and Regulations of the United States Naval Asylum, 
Philadelphia, Pennsylvania. Washington: Government Printing 
Office, 1886. 

"Naval Asylum and Service Pensions for Enlisted Men," U.S. Naval 
Institute Proceedings, XII (1886), pp. 63-67. 

"Comments," U.S. Naval Institute Proceedings, XXII (1887), pp. 541-42. 

"Simpson's Timber Dry Docks," U.S. Naval Institute Proceedings, XIII 
(1887), pp. 221-25. 

"The Capture of Enemy Merchant Vessels at Sea," The North American 
Review, CLXVIII (1890), pp. 206-11. 

"The Arctic Cruise of the U.S.S. Thetis in the Summer and Autumn of 
1889," National Geographic Magazine, 2 (1890), pp. 171-98. 

"The Reconstruction of the United States Navy," The Overland Monthly, 
XVI (October 1890), pp. 381-86. 

"Notes Upon the Necessity and Utility of the Naval War College in 
Connection with Preparation for Defense and War," U.S. Naval 
Institute Proceedings, XIX (1893), pp. 407-13. 



XIX 



Stockton, the War College and the Law 



"Naval War College. Summer of 1894. International Law Situations," in 
Naval War College Abstract of the Course, 1894. Washington: 
Government Printing Office, 1894. 

"Naval War College. Summer of 1895. International Law Situations" in 
Naval War College Abstract of the Course, 1895. Washington: 
Government Printing Office, 1895. 

Editor, Naval War College. International Law: Lectures Delivered at the Naval 
War College by Freeman Snow. Prepared and Arranged for Publication 
by Charles H. Stockton. Washington, D.C.: Government Printing 
Office, 1895. 

"Submarine Telegraph Cables in Time of War," U.S. Naval Institute 
Proceedings, XXIV (1898), pp. 451-456. 

Editor, International Law: A Manual Based upon Lectures Delivered at the 
Naval War College by Freeman Snow, PhD, LLB, Late Instruaor in 
International Law in Harvard University. Second Edition. 
Washington, D.C.: Government Printing Office, 1898. 

"Naval War College. Summer of 1899. International Law Situations" in 
Naval War College Abstract of the Course, J 899. Washington: 
Government Printing Office, 1899. 

Naval War College. Session of 1 899. Preparation for War. A Discussion of Some 
of the Various Elements to be Considered in the Formation of Plans of 
Operations and in the Study of Campaigns. Delivered at the Opening of 
the Course at the Naval War College. Newport, R.I., May 31, 1899. 
Washington: Government Printing Office, 1899. 

"The American Interoceanic Canal: A Study of the Commercial, Naval and 
Political Conditions," U.S. Naval Institute Proceedings, XXV (1899), 
pp. 753-797. 

"An Account of Some Past Military and Naval Operations Directed Against 
Porto Rico and Cuba," U.S. Naval Institute Proceedings, XXVI 
(1900), pp. 457^75. 

The Laws and Usages of War at Sea: A Naval War Code. Washington: 
Government Printing Office 1900). 

"Laws and Usages of War at Sea," Forum (February 1901), pp. 706-09. 



lxx 



John Hattendorf 



Naval War College. International Law Discussions, 1903: The United States 
Naval War Code of 1 900. Washington: Government Printing Office, 
1904, pp. 5-7, 100-14. 

Naval War College. Recent Supreme Court Decisions and Other Opinions and 
Precedents. Prepared under the Direction of the Naval War College. 
Washington: Government Printing Office, 1904. 

"Discussion," U.S. Naval Institute Proceedings, XXXI (1905), pp. 194-97. 

"Would Immunity from Capture during War of Non-offending Private 
Property upon the High Seas Be in the Interest o( Civilization," 
American ]ournal of International Law, 1 (1907), pp. 930-43. 

"The Use of Submarines, Mines and Torpedoes in Time of War," American 
Journal of International Law, 2 (1908), pp. 276-84. 

"The International Naval Conference o{ London, 19084909," American 
Journal of International Law, 3 (1909), pp. 596-618. 

"Address of Mr. Charles H. Stockton of Washington, D.C." [A Review of 
the Proceedings of the Conference in London], American Society of 
International Law Proceedings (1909), pp. 61-84. 

"Discussion ," U.S. Naval Institute Proceedings, XXXV (1909), pp. 380-82. 

A Manual of International Law for the Use of Naval Officers. Annapolis: Naval 
Institute, 1911. 

"The Codification of the Laws of Naval Warfare," American Society of 
International Law Proceedings, (1912), pp. 115-23. 

"Panama Canal Tolls," U.S. Naval Institute Proceedings, 38 (1912), 
pp. 493-98. 

"Does the Expression 'All Nations' in the Hay-Pauncefote Treaty Include 
the United States," American Society of International Law Proceedings 
(1913), pp. 92-101. 

Outlines of International Law. New York: Charles Scribner & Sons, 1914. 

"International Law of the Sea: The Right of Search — Contraband and Its 
Destination — Transfer of Registry — Floating Mines — Blockades — 
The Rights and Duties of Belligerents and Neutrals," The World's 
Work, 29 (April 1915), pp. 706-712. 



lxxi 



Stockton, the War College and the Law 



"A Historical Sketch of George Washington University, Washington D.C., 
Formerly Known as Columbian University and Columbian College; 
and Biographical Sketches" George Washington University Bulletin, 
14 (June 1915 ), pp. 1-25. 

A Historical Sketch of George Washington University, Washington D.C. 
Formerly Known as Columbian University and Columbian College, 
accompanied by a Sketch of the Lives of the Presidents. Washington, 
D.C: George Washington University, 1916. 

A Manual of International Law for the Use of Naval Officers. Revised 
Edition. Annapolis: Naval Institute, 1917. 

"The Declaration of Paris," American Journal of International Law (1920), 
pp. 356-68. 

Remarks on the Covenant of the League of Nations, American Society of 
International Law Proceedings (1918-1919), pp. 45-51. 

Remarks on Recommendation for an International Law Conference, 
American Society of International Law Proceedings (1918-1919), 
pp. 51-61. 

Remarks on the Law of War, American Society of International Law 
Proceedings (1921), pp. 100-101. 

Remarks on the Three-Mile Limit, American Society of International Law 
Proceedings (1923), pp. 43-44. 



lxxii 



I 



Megatrends in the Use of Force 



Anthony D'Amato 



AT ANY GIVEN MOMENT IN HISTORY, there are hundreds if not 
thousands of political, cultural, and economic trends that an 
observer can identify. Some of the trends will be short and of no 
consequence, some long but also inconsequential, and many of them just 
"noise," but there will also be a few significant megatrends. A later historian 
has an easy job: she looks back at the visible long-term trends that changed 
the world. But how can we identify the significant megatrends of today? As 
we approach the end of the twentieth century, millenary thinking 
encourages one to try. I will suggest some megatrends that I believe will 
impact most significantly on the future use of force. Yet in contributing to a 
volume that is part of a historic and enduring series, I am troubled by the 
likelihood that a future reader may be interested in my essay only to see 
what later developments blindsided me. 0{ course, some things could 
possibly happen that would make any such enterprise, not just mine, quite 
obsolete: invasion from another galaxy, conquest by deadly viruses, or more 
benignly, cheaply converting water into energy. But macro-convulsive 
events aside, and with more than customary trepidation, I offer here a 
discussion of some of the megatrends that I see will probably have the 
greatest impact on the future use of force. 



Megatrends in the Use of Force 



The Global Market 

The demise of Marxism -Leninism in the former Soviet Union was only the 
most visible effect of a worldwide surge to capitalism and free markets. Are 
there any "undeveloped" nations today? Perhaps there are a few, but nearly all 
nations rightly regard themselves as "developing" or "developed." Former 
political "hot spots" all over the world have cooled down as the people in those 
localities have increasingly realized the foolishness o{ engaging in political 
fights while their neighbors in peaceful countries are busy accumulating 
wealth. I have in mind South Africa (how else account for the incredible 
dismantling of apartheid?), Northern Ireland, and even the Middle East, which 
is fitfully moving toward accommodation. 

As prosperity spreads, we hear commentators saying that war is 
economically irrational and hence cannot or will not occur. The problem is 
that popular writers were saying the same thing in the years preceding the 
outbreak of World War I. Industrial Europe was humming along in 
1907-1914, trade was flourishing, and wars seemed a thing of the past. Was 
there a difference between those times and today with respect to the outlook 
for war? I can suggest two interrelated differences. 

One is colonization. Prior to the First World War, the European powers, no 
matter how peaceful vis-a-vis each other, were engaged in aggrandizement of 
their empires abroad. Colonial wars were being fought in Africa and Southeast 
Asia even as the home countries appeared peaceable within Europe. Perhaps 
the submerged competition for empire, combined with a continuing taste for 
foreign military adventurism, were long levers propelling the mother countries 
toward war. Looking back on it, it seemed to have been a case of the colonial 
tail wagging the home country dog. 

A second difference concerns convictions about the peace thesis. Although 
it was popular to claim that wars were economically irrational, there were 
perhaps too many skeptics in high places. The skeptics were justified at least in 
believing that it had not been proven that nation A would become richer by 
trading with nation B than conquering and subjugating B. Perhaps colonization 
was the basis for this belief; after all, the major nations were engaged in 
colonization at a time when their home economies appeared to be prospering. 
Although there may not have been any causal connection between 
colonization and prosperity, when two major trends coexist many people 
assume that they are correlated. It was intellectually hard to make a case that a 
nation could be better off without colonies. To be sure, nations without 
colonies such as those that made up the Austro-Hungarian Empire, were 



Anthony D'Amato 



thriving prior to World War I, but this could be rationalized as derivative or 
spillover prosperity from colonizers such as France, Germany, and the 
Netherlands. 

Today, in contrast, colonialism has ended. I would like to show by some 
statistics the generally accepted proposition that the peace thesis has been 
proven by the experience of Japan. 

Japan for the last hundred years has been a nation of processors, importing 
raw materials and energy and exporting finished products. Japan's prosperity in 
the processing business was rudely disrupted in the aftermath of World War I, 
when European nations, and eventually the United States, erected high tariff 
barriers. No longer able to sell its products profitably in these two markets, 
Japan was plunged into a severe recession. Control of its economically hapless 
government soon passed into the hands of demagogues and militarists. Their 
agenda was to substitute force for trade: an export market for Japanese goods 
would be created by force in China, to be followed up by forcible control over 
imports from Southeast Asia. The "export" part of the story got off to a good 
start with the immediate conquest of Manchuria, unopposed by the League of 
Nations. But soon the Japanese Army was confronted with sophisticated 
guerrilla tactics in the rest of the vast Chinese empire. It got bogged down in 
China through the rest of the 1930s and for the entire duration of World War 
II. Far from being able to generate a captive Chinese market for Japanese 
products, the only "demand" created was that for Weaponry and ammunition 
on the part of the Japanese army — a demand that Japan had to satisfy for free. 

However, it is the "import" side of the story that furnishes the more 
interesting and decisive demonstration of the peace thesis. (The case of Japan's 
China adventure was not conclusive, in that it could be blamed on military 
shortcomings and poor generalship rather than economic irrationality.) Prior 
to 1940 Japan had to import 83 percent of its iron-ore requirements, 40 percent 
of its steel, 80 percent of its oil, and 100 percent of its aluminum. Then it 
invaded Southeast Asia, with immediate and astounding success. Military 
dictatorships were set up in Hong Kong, the Philippines, Malaya, Singapore, 
the Dutch East Indies, Indochina, Siam, northwest New Guinea, Burma, and 
numerous South Pacific islands. But surprisingly, exports from these newly 
colonized territories to Japan steadily declined from 1942 to 1945, even though 
in 1942-1943 there was only sporadic Allied interference with Japanese 
shipping. 1 By 1945 Japanese coal imports were at 8 percent of their 1941 level, 
iron ore at 5 percent, iron and steel at 18 percent, and rubber at 26 percent. 
Also, within the conquered lands themselves, by 1945 tin production in 
Malaya had declined to 24 percent of its prewar level, and in the Dutch East 



Megatrends in the Use of Force 



Indies oil had collapsed to 5 percent of its prewar output. 2 Military conquest 
had thus contributed both to a sharp reduction in the production of raw 
materials in Southeast Asia and a near-collapse of Japanese imports of these 
raw materials. 

Contrast this situation with that of the present day. The efficacy differential 
of trade over war is such that Japan now imports all the raw materials it wants, 
and the profitability of its processing industry has resulted in an enormous 
capital trade surplus. The lesson learned not only by the Japanese public but 
also by people throughout the world is that everyone can become materially 
richer if their nations trade with other nations instead of trying to conquer and 
control them. It is better for A to trade with B than to own B. 

Trade increases the material wealth of both A and B irrespective of the 
sophistication of their internal economic systems. If A is very rich and B very 
poor, and even if A can produce more efficiently every single item that B can 
produce, the Doctrine of Comparative Advantage nevertheless assures that 
both A and B will become better off by trading with each other. 3 As Paul 
Krugman puts it, "[A] country whose productivity lags that of its trading 
partners in all or almost all industries will export those goods in which its 
productivity disadvantage is smallest." 4 The attraction o{ trade to A is 
inescapable: it becomes more wealthy itself while driving up the wealth of its 
neighbor B, thus giving B less incentive to prey upon A. 

Despite this reality, history has shown that a war can break out no matter 
how economically irrational it might be. Our baser instincts tend to control our 
actions; our minds, swept along, provide the necessary rationalizations. 5 When 
mass emotion has been aroused by appeals to nationalism, "God and Country," 
religious fundamentalism, lebensraum, demonizing one's neighbors, and the 
like, then nations have resorted to war. (A recent example was the soapbox 
orators' appeals in Former Yugoslavia, turning a previously peaceful 
accommodation among Croats, Muslims, and Serbs into mutual hatred and 
civil war. The result was nothing short of economic disaster for all parties, 
which is probably one reason why the nations of the European Union were not 
particularly motivated to intervene.) Emotions such as these cannot be 
trumped by appeals to reason. To block a militant emotion, a countervailing 
emotion must be evoked. 



Emotional Value of Life 



I believe that the most significant megatrend of the twentieth century is the 
sharply increasing value we place on individual human lives. This may be a 



Anthony D'Amato 



strange proposition to assign to a century in which more people have been 
killed than ever before (the two world wars, Stalin's and Hitler's genocides, 
etc.) Yet it was largely as a revulsion against those killings that the post-World 
War II era witnessed a seachange to international human rights: from the 
Universal Declaration of Human Rights and the Genocide Convention to the 
recent Rights of the Child Convention (ratified by more States, and more 
quickly, than any treaty in history). But revulsion against killing aside, I think 
the two underlying causes of the increasing value placed on human life are 
population dynamics and television. 

Population Dynamics, The Malthusian doomsayers of the 1970s, such as Paul 
Ehrlich, were right when they said that a geometrically increasing world 
population would render human life very cheap, but they were wrong in 
predicting a population increase. To be sure, one can still make a vivid claim 
that there is a global population explosion. I recently added up demographic 
statistics that show us to be adding to the world's net population, each year, a 
number equal to the combined populations of New York City, Los Angeles, 
Chicago, Mexico City, Rio de Janeiro, London, Paris, Berlin, Vienna, Rome, 
Moscow, Bombay, Melbourne, Beijing, Shanghai, and Tokyo. How can the 
world continue to absorb all these new people each year? The world's 
population, now at 5.7 billion, will increase to about 9.4 billion over the next 
fifty years. Are we not already witnessing the cheapening o( human life, sadly 
exemplified in genocides in Cambodia, former Yugoslavia, and 
Rwanda -Burundi? 

Despite overall population growth, the megatrend goes the other way. For 
the first time in human history the developed nations are experiencing a 
population decline. United Nations statistics compiled in 1995 show that the 
fertility rate of women was equal to or less than the replacement rate (2.1 
children per woman) in countries having 44 percent of the total world 
population. By 2015 it is projected that countries containing two-thirds of the 
world's population will show a zero or negative replacement rate. 6 The lowest 
fertility rates are in Italy (1.24), Spain (1.27), and Germany (1.30). Hong Kong 
(1.32) and Japan (1.48) are surprisingly low, as are Russia (1.53), South Korea 
(1.65), Singapore (1.79), China (1.92), and Thailand (1.94). The United 
States is slightly below the replacement rate (2.05). As the developing 
countries become developed, they will clearly head in the direction of China, 
Thailand, and Japan. Just a decade or two ago China had a population 
crisis — no longer. Among the factors accounting for the population decline are 
women's education (which has been called the world's most powerful 



Megatrends in the Use of Force 



contraceptive) and a world decrease in male sperm count (not fully 
understood, but perhaps due to increasing use of pesticides in agriculture and 
medications in animal farming) . 

If a Malthusian surplus of people theoretically renders human life cheap, a 
shortage of people is rendering human life increasingly dear. Since I am talking 
about value, anecdotal evidence can be useful. In past centuries and through 
much of the twentieth century, parents could "tolerate" the loss of two or three 
sons in a war; there were more siblings back home. Today there is no tolerance 
for the loss of a single life in war. Many countries are demilitarized, and with the 
increase in democracy throughout the world, public opinion wants nothing to 
do with military adventurism. American foreign policy in Bosnia today, where 
American troops are stationed along with other NATO forces, is dominated by 
a fear of "body bags" returning home. Moreover, the inevitable fatal accidents 
that occur in the course of military training and exercises are now getting 
enormous media attention; a few decades ago they were not even noticed. 
American special forces sent abroad for "police action," such as in Somalia a 
few years ago, are schooled in the doctrine that individual survival comes first: 
don't begin a mission unless you have a safe individual "exit strategy." Gone, 
maybe forever, is the World War II ethic of individual sacrifice to further some 
generalized military policy (though some fundamentalist countries can still 
muster fighting forces under the guise of religious obligation). During the 
Second World War, the number of lives lost to "friendly fire" was not revealed; 
parents were notified that their sons had been killed in action. Today, 
pervasive media coverage makes it difficult to hide a tragic loss due to friendly 
fire, and when any is revealed, public reaction is instantaneously critical. 

Television. First came motion pictures, then television. They have changed 
human life on earth, not just because underdeveloped countries can see how 
people live in developed countries and want to get there too, and not just 
because global news makes faraway places and events seem close and relevant. 
Rather, what is important is the creation by the entertainment media of 
empathy for other people's lives. The stories told on television — the series and 
"made-for-TV" films — feature the individual, and they use audio-visual tricks 
and special effects to establish empathy between the viewer and the image of a 
person on the screen. We are caught up in the lives of these actors in their 
fictional stories, and we share their hopes and fears. Viewers learn to care about 
what happens to these actors in their compelling dramas. David Hume in the 
eighteenth century discussed the "moral sentiment" — that facility of people to 
sympathize (a better word for his purposes perhaps would have been 



Anthony D'Amato 



"empathize") with the inner feelings of others when they recognize the external 
signs of those feelings. A stranger who is obviously in pain can evoke a sort of 
virtual pain in the observer. 0( course, Hume knew nothing about moving 
pictures; he lived before the invention even of photography. Perhaps he would 
have been astounded if he could have seen how easy it is for people to 
empathize with motion pictures of other people, even when they know those 
other people are only acting. 

Soldiers, of course, are trained to disregard the human feelings and 
sentiments of the enemy. War propaganda often demonizes enemy 
combatants, downgrading the enemy to a subhuman level. Group values are 
promoted at the expense of individual values. For example, if we look back at 
the movies of the Second World War, we find that most of them feature an 
ensemble of leading players (in contrast to the superstar of today), and usually 
one of them dies in action in the course of the picture. Although the death is 
temporarily mourned, it is soon overshadowed by the military glory of the 
successful ending. Hollywood did its best to emphasize group values, but it was 
not easy to do. There is an underlying logic of motion pictures and television 
that makes the images and stories most compelling when they portray the 
drama of an individual, empathetic hero. When John Wayne was in a World 
War II movie, he could not die (if he did, the box office would die too). His 
movies suggest an uneasy directorial struggle between group heroics and 
Waynish heroics, and somehow his films viewed today seem less realistic as war 
cinema because of his strong presence. 

"Smart" Weapons, The development of "smart" weapons that home in on 
their targets means that the mass and indiscriminate killings of World War II 
are no longer a necessary part of warfare. The number of personnel in national 
army groups, has accordingly decreased; smaller-sized "mobile," "elite," and 
"special forces" units are taking the place of armies, divisions, and regiments. 
The new soldier — more mechanized, trained, and deadly — is correspondingly 
more valuable than his or her historical counterpart. The American F/A-18 
Hornet, both a fighter (F) and attack (A) aircraft, can carry up to three tons of 
smart bombs and missiles. 

A striking difference between World War II and today is the case of the 
aircraft carrier. In 1940-1945 it was the single most expensive and effective 
weapon, and it was nearly invulnerable. Today its cost and effectiveness are 
still enormous when used against many adversaries; what has changed is 
vulnerability. The U.S. carriers in the Seventh Fleet, shuttling 
opportunistically between the Middle East and the Formosan straits, are a 



Megatrends in the Use of Force 



formidable presence in both theatres. Yet the carrier is virtually helpless against 
a nuclear missile attack. A single missile discharged from a submarine many 
miles away can obliterate an aircraft carrier. The carrier is like Goliath, who 
was the most powerful individual of his time and place: although retaining his 
power, he abruptly became vulnerable to David's slingshot. 

It is mostly a historical coincidence that smart weapons have been 
developed at the same time that human life has become more valuable. The 
two trends work hand in hand, but they have very little intrinsic connection. 
Scientists and technicians have always had sufficient motivation to develop 
accurate and smart weapons; they did not need any extra humanitarian 
motives. 7 Moreover, there are contrary trends. The same scientists and 
technicians have developed nuclear weapons of unprecedented and 
indiscriminate destruction. But a nuclear missile can be accurate or not, 
depending on its use. It can be thought of as having pinpoint accuracy if 
launched upon an aircraft carrier at sea, while a counter-value attack upon a 
city is the antithesis of military accuracy. Another contrary trend is the blurring 
of the distinction between civilian and combatant. Guerrilla fighters who wear 
civilian clothes invite their opposition to attack indiscriminately — as was 
discovered, among other places, in Vietnam. And with extreme perversity, 
guerrillas can turn on defenseless people, as did the Shining Path in Peru in 
recent years. Much of the killing and the setting up of "detention camps" in the 
former Yugoslavia in the 1990s was traceable to the lack of military uniforms or 
insignia on many of the soldiers, a legacy of the effective resistance movements 
in Yugoslavia during World War II. 

Smart weaponry means that governmental officials are not totally safe if they 
initiate war. As a result, wars of international aggression have become 
extremely unlikely. Most wars since World War II have been limited, internal 
wars (Korea, Vietnam, Nicaragua, Yugoslavia) or border disputes. Iraq's attack 
on Kuwait was the anachronism that proves the rule, and even then from 
Saddam Hussein's point of view it was aimed at a territory that he said 
historically belonged to Iraq. Perhaps the most instructive example is, again, 
that of Japan. Not only is it demilitarized but also it has decided that armies are 
economically wasteful. Recently, as North Korea proceeded to develop a 
nuclear capability, Japan appeared to view the situation with equanimity. The 
United States seemed to be far more worried about nuclear proliferation into 
North Korea than was Japan, even though Japan was nearby and vulnerable. If 
the North Korean government thought that its internal economic problems 
could be solved by diverting scarce resources to achieve a nuclear capability, 
they could have learned from De Gaulle's force de frappe. France's nuclear 

8 



Anthony D'Amato 



weapons appear to have done absolutely nothing for France's well being or life 
style; instead, the program has been immensely costly and remains so (as 
France continues to have to bribe the Polynesians to allow an occasional 
nuclear testing program in the South Pacific). France's neighbor Germany has 
achieved greater clout in the European community by not diverting any of its 
manufacturing energy to nuclear weapons. 

Clash of Civilizations? 

Irrational reasons that can impel a nation to war include religion and 
nationalism, which are of course the two most historically important factors 
leading to war. Nationalism can be held with the fervor of religious 
commitment (consider the Rousseauean notion of "civil religion"), yet I think 
that nationalistic wars have peaked in the nineteenth and twentieth centuries. 
It was never an easy matter for governments to stir up their citizens to go to 
war, and now that government elites are looked upon with more distrust than 
ever — coupled with the increasing value accorded to human life — I suspect 
that wars oi aggression between nations will become increasingly rare. 
Religion, cutting across national boundaries, is a more likely candidate to 
precipitate international conflict. 

Samuel Huntington identifies the major contemporary civilizations as 
Western, Confucian (Sinic), Islamic, Japanese, Hindu, Latin American, and 
perhaps African. 8 All of these have a distinctly religious core. His article in 
Foreign Affairs published in the summer of 1993, entitled "The Clash oi 
Civilizations?" instantly became a focal point of discussion around the world. 
Perhaps much of the attention accorded to the article was due to the fear 
evoked by the possibility oi a military clash between two huge civilizations, 
plunging the world into a genocidal war that could dwarf the first two world 
wars. The problem was that Professor Huntington never defined what he 
meant by "clash." That word can refer ambiguously to encounters ranging from 
the cultural clash of rock music and country and western music, to the religious 
clash of two professors of theology debating alternative interpretations of the 
Dead Sea Scrolls, to the culture shock of Western women visiting 
fundamentalist Muslim countries and seeing obvious signs of female 
subordination to men, to outright military encounters, as among the Croats, 
Muslims, and Serbs in the Former Yugoslavia. 

Professor Huntington followed up his article with a book, whose title, unlike 
that of the article, did not end with a question mark. After considerable 
historical material and various statistical tables, The Clash of Civilizations and 



Megatrends in the Use of Force 



the Remaking of World Order ends with a possible scenario of a global war 
breaking out in the year 2010. China claims that it will establish full control 
over the South China Sea; "The Vietnamese resist and fighting occurs between 
Chinese and Vietnamese warships." 9 The United States dispatches a carrier 
task force to the area. China responds by launching air strikes against the task 
force. Japan sides with China, one thing leads to another, and soon Russia, 
Europe, and "most of Islam" are drawn in to a "global civilizational war." 
Professor Huntington concludes, "If this scenario seems a wildly implausible 
fantasy to the reader, that is all to the good." 10 But the first question that a 
reader should ask is not the implausibility of the scenario (after all, there are 
millions of implausible scenarios that people could envision), but how it relates 
to Professor Huntington's thesis. China and Vietnam are part of one 
civilization as defined by Professor Huntington — the Sinic civilization. 11 Thus, 
if his scenario begins as a conflict between China and Vietnam, it is not a clash 
between civilizations but a clash between two States having the same 
civilization. Such a clash may or may not occur; indeed, anyone could predict a 
clash between any two contiguous States and be as likely as Professor 
Huntington to be right or wrong. It is surprising that Professor Huntington 
would choose as the linchpin scenario of his book a conflict that has nothing to 
do with the thesis he is advocating. Yet it is not an isolated example of the 
sprawling nature of his thesis. In many previous chapters he recounts clashes 
within civilizations, especially focusing on wars in Islamic countries. The 
recent wars between Iran and Iraq, and between Iraq and Kuwait (and Saudi 
Arabia, ostensibly the next target had Saddam Hussein succeeded in holding 
on to Kuwait), are clearly wars within a civilization. 

There is some plausibility in the idea that if an irrational war is to occur, the 
irrational reason for the war may be rooted in religions or civilizations. 
However, picturing how it is supposed to occur is really the crux of the matter. 
Professor Huntington may have felt the logical imperative to supply at least one 
scenario in his book so as to answer the question of how. But the scenario he 
chose illustrates nothing so much as the poverty of his thesis. The thesis boils 
down to saying that wars can occur within civilizations as well as between 
them. One then has to ask what civilizations have to do with it. 

The Corporate World 

With the accelerating global market, multinational corporations are 
increasing in size and influence. They are not downsizing. Corporate mergers 
and acquisitions throughout the world appear greatly to exceed corporate 

10 



Anthony D'Amato 



divestitures and spin-offs, not only for reasons of economic efficiency but also 
because of the increasing separation of owners and managers. Shareholders in 
corporations rarely exercise meaningful control of operations; instead their 
fiduciaries — corporate executives and managers — have a free hand. These 
managers try to hold onto and augment their power, which means, effectively, 
that companies will grow even if growth is not in the economic interest of the 
shareholders. 

Governments, on the other hand, are downsizing. With the decline of 
international wars, they have less justification for taxing their citizens; as tax 
revenues level off or decline, government services are cut back or privatized, 
and as a consequence the pressure for downsizing increases. 

If we compare multinational corporations with governments, we find not 
only that the former are upsizing while the latter are downsizing but we also 
find that many corporations have assets that exceed those of many 
governments. Perhaps the majority of the approximately 190 States in the 
world today do not collect as much as eight billion dollars a year in taxes — the 
net income of General Electric Corporation. 12 Microsoft Corporation, which 
has been in existence for less than a quarter of a century, currently earns $3.5 
billion a year, more than the tax revenues of many States that have been in 
existence for centuries. 13 There are other considerations useful in comparing 
multinational corporations with government. 

Corporations tend to exert far more power over their employees' daily lives than 
governments exert over their citizens. (True, an employee can quit her job just 
as a citizen can renounce her nationality, but there is no safe haven in either 
case — one simply goes to the next corporation or the next country.) 

Unlike governments, corporations do not have a specific territory to defend. 
They branch at will throughout the world, setting up offices, factories, service 
centers, etc. More importantly, they establish subsidiaries in many countries. 
Technically a corporation's legal identity is dependent upon its charter in its 
original State of incorporation, 14 however, multinational corporations these 
days — in the unlikely event of hostility from the original State of 
incorporation — have the hydra-like ability to phase out their main office and 
reincorporate in another State. 15 Peter Drucker has called attention to the fact 
that multinational corporations are slowly becoming transformed into what he 
calls "transnational corporations." 16 Whereas a multinational corporation sets 
up subsidiaries that are essentially clones of the parent company, a 
transnational corporation only localizes selling, servicing, public relations, and 
legal affairs; parts, machines, planning, research, financing, marketing, and 
pricing are conducted in specialized locations, so that a given subsidiary in a 

11 



Megatrends in the Use of Force 



given country might receive parts from all the other subsidiaries and simply 
assemble the final product locally. Thus, if any government takes over any of 
the subsidiaries, it will take over an essentially worthless operation; the 
corporation will simply cease shipping the component parts to that taken-over 
subsidiary. Drucker says "successful transnational companies see themselves as 
separate, nonnational entities." 17 As global financial markets become 
consolidated (twenty-four-hour trading worldwide), there will be less reason 
for US corporations to maintain their US nationality. They may gain a tax 
advantage by moving to a foreign haven, and there might be little loss in 
abandoning their American identity as far as share prices and financial liquidity 
are concerned. 

Unlike governments, corporations are not burdened with social responsibility. A 
government — even the most dictatorial — believes that the welfare of its 
citizens is its responsibility. In contrast, corporations will not take on any social 
responsibility — even as to their own employees — that would result in a loss of 
long-term profitability. 18 

Nearly every corporation has its own security personnel. The number of private 
police personnel employed in the United States greatly exceeds the number of 
public police officers. Private security persons are usually armed and can legally 
use force within their corporate jurisdictions. In addition, there are many 
private companies that lease temporary security persons to corporations to 
police special events. As I walk to my office, I sometimes see a Northwestern 
University police car. It is painted the same colors as a regular police vehicle 
and has Mars lights on its roof. The persons in the car are uniformed like 
regular police and carry weapons. The word "POLICE" is painted on the 
side — and underneath it, in a somewhat smaller font, "NORTHWESTERN." 

The Internet has vastly enhanced the power of corporations, not just because it 
allows them to communicate inexpensively with all parts of their production 
and marketing processes, but because it gives them a new ability which is now 
in its earliest stages. I am talking about the trend toward electronic banking. 
Banks already engage in wire transfers of money, but when corporations start 
doing it among themselves — bypassing banks in the process — the result will be 
to take monetary control out of the hands of governments. A nation-state will 
not much longer be able to block its currency or restrict capital movements. It 
is hard to exaggerate the immense loss of power that governments will 
experience when international monetary transfers are completely privatized. 

Corporations are increasingly outsourcing many of their functions and modes of 
production. They regard themselves as being in the knowledge business, not the 
production business. In addition to advertising, which traditionally has been 

12 



Anthony D'Amato 



placed through outside agents, outsourcing includes plants and factories, 
payroll, and most recently employees. Specialized companies with names like 
"Manpower," "Labor Ready," "Account Temps," "Billing Concepts," 
"Catalytica," "Data Processing Resources," "Staff Leasing," and "AccuStafP 
now provide U.S. corporations with temporary employees who are ready to 
handle just about every function that the corporation used to provide. The 
more functions that corporations outsource, the less vulnerable they are to 
government regulation, unionization, seniority demands, and natural disasters. 

The huge power and confined responsibility of multinational corporations 
lead to the speculation that they, and not necessarily States, may become the 
major warring antagonists of the future. 

A corporation lives on profits. Although the path of least resistance toward 
profitability is raising prices, the obstacles on that path are competition and 
substitution by consumers of alternative goods or services. 19 A corporation can 
do little about the "substitution effect," but it certainly can spend a great deal of 
its energy combatting competitors. The marketplace prefers that this "combat" 
take the form of increased productive efficiency. But it can also take the form of 
monopolization and destruction of the competitor. Destruction can be 
accomplished by predatory pricing (outlawed by U.S. antitrust statutes, but 
when we are talking globally, there is opportunity for predatory pricing in other 
countries who either do not have antitrust laws or enforce them laxly). 
Monopolization is the preferred route. A company receives a limited term 
monopoly for some important forms of intellectual property such as copyright 
and patents, and an unlimited term for others such as trademarks. Trade 
secrets in many countries receive forms of judicial protection. However, 
intellectual property is a benign form of monopolization, because it strikes a 
legal balance between rewards innovation and temporal limits on that 
innovation. 

The more crude form of monopolization is by use of stealth and force. 
Industrial spying is big business. Manufacturing processes, trade secrets, and 
software engineering are some valuable industrial targets for corporate 
"intelligence" operations. However, we have not yet seen the overt use offeree 
against competitors on any significant scale, even though recently there have 
been numerous accounts of specific assassinations of corporate executives and 
entrepreneurs in Russia and in some of the other States of the Commonwealth 
of Independent States. 

What if someday corporations add military force to their outsourcing, and 
organizations spring up with names such as "Mercenaries, Inc.," "Battle 
Ready," "Armada Resources," "Guerrilla Temps," and "Spy Concepts"? These 

13 



Megatrends in the Use of Force 



outfits would do dirty work for hire. One such organization already exists, 
although so far it refuses to be hired by private corporations and limits its 
services to governments. The organization, based in South Africa, is called 
"Executive Action." 20 

Corporate "greed" and "rapacity" in the business "jungle" are part of 
everyday language. As business enterprises exceed governments in assets and 
power around the globe, will we begin to see forceful manifestations of these 
terms? The history oi the British East India Company may shed some light on 
the matter. For two and a half centuries it enriched its stockholders, and its 
tariffs fueled the expansion of the British parliament from a small organization 
to a powerful central government. 21 The company was founded on December 
31, 1600, by a charter from Queen Elizabeth that gave it exclusive trading 
privileges with the East Indies. Apart from being allowed to arm its vessels, the 
company was barred from engaging in any forms of conquest or colonization. 
However, as the years passed, it increasingly got involved in the use of force. At 
first force was used defensively — against depredations from Portuguese and 
Dutch vessels and outposts in India and the Orient. But then, under the theory 
that the best defense is a strong offense, the British East India Company 
increasingly engaged in military campaigns, becoming a colonial arm of the 
British government until its entire absorption by that government in 1857. 
Perhaps if there had been no competition from Portugal and Holland the 
picture would have been a peaceful one oi trade and enrichment. But 
competition is endemic in business. Standard economic theory says that "pure" 
competition forces prices down to the point where profits vanish entirely. 
Hence, competition is an ever-present threat to the continued existence of 
corporations. 

The military clashes between the British and Dutch East India companies in 
the seventeenth and eighteenth centuries in Southeast Asia were made 
possible by the weakness of local governments in that area. Today, in most 
parts of the world, governments are still strong enough to deter corporations 
from resorting to armed force in the battle against their competitors. But as 
governments downsize and corporations become more powerful, the situation 
may change. 

If the situation changes, will "international law" apply to intercorporate 
warfare? Or will there be a new "intercorporate law," analogous to 
international law? If such law arises, who will enforce it? Perhaps the largest 
multinational corporations will set up a global board of governors with enough 
power to prevent smaller competitors from using force, thus insulating 
themselves from competition. But the new law they promulgate and enforce 



14 



Anthony D'Amato 



may not be informed, as international law is, by elementary notions of morality. 
International law reflects many moral norms (e.g., military humanitarian law, 
the laws of war, laws of state responsibility for torts, and the general principle oi 
the equality of states), but perhaps that is because the nation-states that have 
generated that law are themselves the moral repositories of their citizens. 
Corporations, as I have mentioned, have no moral imperative; their goal is 
simply to make profits. Hence, a world intercorporate law may be morally 
barren, unequal in its application, dictated from above, and unchangeable from 
below. We could be heading toward world fascism. I hope I am wrong, but it 
doesn't hurt to be vigilant. 



Notes 



1. Japanese merchant marine tonnage declined (existing stocks plus new ships built minus 
losses on the high seas) moderately in 1941 and 1942, more steeply in 1943, and then 
precipitously in 1944 and 1945. TAKAFUSA, LECTURES ON MODERN JAPANESE ECONOMIC 
HISTORY 1926-1994, at 113, table 3.3 (1994). 

2. PONTING, ARMAGEDDON 121-22 (1995). 

3. The Doctrine of Comparative Advantage was suggested in the writings of Adam Smith 
and was articulated more fully by David Ricardo in 1817. The mathematics works roughly as 
follows. State P can produce rowboats and canoes more efficiently than Q can produce either 
one. Suppose P and Q utilize all their labor in producing just these two products. P can produce 
ten boats or five canoes a day utilizing all its labor. Q can produce six boats or one canoe a day. 
Since P is the more efficient producer both of boats and canoes, how can trade mutually benefit 
both P and Q? In the following way: Prudence owns one canoe in P. Within P, she can exchange 
her one canoe for two boats (because, within P, it costs twice as much to produce a canoe than a 
boat). She then travels to Q and exchanges her one canoe for six boats (because within Q, it 
costs six times as much to produce a canoe than a boat) . With her six boats, she travels back to P, 
and exchanges the six boats for three canoes. Then she takes the three canoes back to Q, where 
she can exchange them for eighteen boats. Back to P, she exchanges her eighteen boats for nine 
canoes, and so on back and forth until Prudence is the richest person in both countries. 

In practice, of course, this does not happen. Everyone will soon catch on to the international 
arbitrage that Prudence is practicing. Traders will export canoes from P into Q, and import boats 
from Q into P. Manufacturers in P will conclude that so long as trade is going on with Q, they will 
be better off producing only canoes. Conversely, manufacturers in Q will conclude that they are 
better off producing only boats. The canoe manufacturers in P and the boat manufacturers in Q 
will be producing at their own optimum efficiency; everyone in P and Q will be better off because 
the "price" of a canoe will stabilize at somewhere between two and six boats, and the "price" of a 
boat will stabilize at somewhere between one-half and one-sixth of a canoe. These prices will be 
better for the customers in both P and Q than the prices they would have had to pay if there was 
no international trade between P and Q. (Nothing changes in this example if we introduce 
money as an exchange mechanism.) 

4. Krugman, Pop Internationalism 91 (1996). 

5. I am collapsing a lot of psychology here. It appears that our cerebral cortex, in an attempt 
to maintain verbal control over our actions, convinces itself (that is, convinces ourselves) that it, 

15 



Megatrends in the Use of Force 



and not our baser emotions, is in command. We accept these rationalizations (indeed, we have 
no choice, because our own minds have furnished them) . In fact, we are not in rational control of 
our actions and decisions, but we think we are. Now if we multiply this phenomenon by hundreds 
of thousands of minds within a State, and the "head" of government whips up mass emotions to 
resort to military force while at the same time providing verbal rationalizations for the need to do 
so, we have war hysteria that tends to sweep along even the most rational thinkers. 

6. Crossette, How to Fix a Crowded World: Add People, N.Y. TIMES, Nov. 2, 1997, at sec. 4, 
p. 1. 

7. See generally GEORGE & MEREDITH FRIEDMAN, THE FUTURE OF WAR (1996). 

8. Huntington, The Clash of Civilizations and the Remaking of World 
Order 45-47 (1996). 

9. Rat 313. 

10. Rat 316. 

11. Id. at 45: "The term 'Sinic,' which has been used by many scholars, appropriately 
describes the common culture of China and the Chinese communities in Southeast Asia and 
elsewhere outside of China as well as the related cultures of Vietnam and Korea." 

12. The approximation in the number of States is due to the difficulty of categorizing some 
entities as States, e.g., Vatican City, the Isle of Man, Puerto Rico. 

13. Microsoft was founded in 1975. 

14- Barcelona Traction Case (Belg. v. Spain), 1970 I.C.J. 3. 

15. Some U.S. tobacco companies have recently begun to move their main offices out of the 
United States in the face of increasing governmental regulation of cigarette smoking. Although 
they are still U.S. companies, it would not be surprising some day to find that they have been 
quietly phasing out their U.S. identity and abandoning their U.S. nationality. 

16. Drucker, The Global Economy and the Nation-State, 76 FOREIGN AFFAIRS 159 (1997). 

17. Rat 168. 

18. Some Japanese corporations have professed a responsibility to their employees' welfare 
even at the expense of profitability. But in the past few years, with the severe downturn in the 
Tokyo stock market, many of those same corporations are revisiting their policy of corporate 
benevolence. Globally, there are some corporations that have taken short-term losses to support 
some socially benevolent policies, but I know of no corporation (other than not-for-profit 
"corporations") that will accept a decline in long-term profitability in order to engage in a 
program of social welfare. 

19. Where substitution is not possible, there is a "natural monopoly" that governments are 
quick to regulate, such as the provision of electricity, water, mail, and telephone service. 
However, the recent movement to deregulation has seen competition for the post office (the 
Netherlands has entirely privatized its post office, while other countries have developed private 
air courier services), a proliferation of competing telephone companies, and the beginning of 
other alternatives (bottled water, home generators) . 

20. This company was described on the CBS News show "Sixty Minutes" under the heading 
"Dogs of War," aired on June 1, 1997. For a transcript, contact CBS News, 524 West 57th Street, 
New York, NY 10019. ' 

21. See generally LAWSON, THE EAST INDIA COMPANY: A HISTORY (1993). 



16 



II 



The Universality Principle 
and War Crimes 



Yoram Dinstein 



O 



I 



NE OF THE MOST FUNDAMENTAL TENETS of international law is 
that it determines the permissible limits of the jurisdiction of States. 1 
While issues relating to the exercise of State jurisdiction may extend to every 
aspect of human conduct, the crux of the matter is criminal jurisdiction. 
Criminal jurisdiction is vested in a given State only when there exists between 
that State and either the specific offense or the alleged offender a legitimate 
link, that is to say, a link which is legitimate in the eyes of international law. In 
the absence of such a legitimate link, the State is not entitled to assert criminal 
jurisdiction. 

Five principles have emerged in international law as legitimate bases for the 
exercise of the criminal jurisdiction of States over alleged offenders. 

• Territoriality, namely, the fact that the offense was committed within the 
territory of the State asserting jurisdiction (including ships and aircraft 
registered therein). Although this is ostensibly the simplest base of criminal 
jurisdiction, it must be appreciated that the question of whether an offense 
actually takes place within the territory is not always easily answered. Above 



The Universality Principle and War Crimes 



all, it is difficult to determine when an act committed outside — yet having 
effects inside — the territory comes within the scope o( legitimate criminal 
jurisdiction. 3 

• Nationality of the alleged offender (or "active personality") , namely, the fact 
that the person charged with the offense is a national of the State asserting 
jurisdiction. In most instances in which criminal jurisdiction is exercised by a 
State, the circumstances would satisfy both the territoriality and the active 
personality principles, inasmuch as the criminal act is perpetrated by a national 
within the geographic confines of the home country. Hence, the real need for 
invoking the active personality principle per se arises chiefly when the offense is 
committed by a national extraterritorially. The active personality principle 
usually also covers non-nationals serving the State in different capacities (such 
as members of the diplomatic service or of the armed forces), and at times it is 
even extended to permanent residents. 

• Nationality of the victim of the offense (or "passive personality"), namely, the 
fact that — irrespective of the situs of the offense and the nationality of the 
perpetrator — the victim is a national, or conceivably even a permanent resident, 
of the State asserting jurisdiction. Strong opposition has often been expressed 
against the passive personality principle when standing alone, viz-, when a 
national of State A is prosecuted by State B for criminal activity affecting 
nationals of State B carried out within the boundaries o( State A (or even State 
C). 4 All the same, in at least some settings the passive personality principle is too 
well entrenched in State practice today to be seriously contested. 5 

• Protection of certain vital national interests of the State, namely, authorizing a 
State to exercise criminal jurisdiction irrespective of location or nationality 
(even when the alleged offenders are foreigners and they acted 
extraterritorially). The "protective" principle is circumscribed to acts against 
the national security of a State; counterfeiting its currency, national emblems, 
seals or stamps; forgery, fraud or perjury committed in connection with official 
documents, especially passports and visa permits; and improper use of or insult 
to the national flag. 6 

• Universality , namely, "the authority of the State to punish certain crimes 
wherever and by whom [soever] committed." 7 This authority, which is vested 
in every State regardless of territory and nationality, is limited to the exercise of 
jurisdiction over delicta juris gentium (i.e., acts defined as crimes by 
international law). The view that the universality principle encompasses 
"common crimes such as murder," although shared by several scholars, is not in 
conformity with customary international law. 8 Had the universality principle 
been applicable to a broad range of ordinary crimes, there would be no raison 

18 



Yoram Dinstein 



d'etre for the other bases of jurisdiction. After all, universal jurisdiction's 
"limitless scope renders all other forms of jurisdiction superfluous." 9 The 
universality principle must be looked upon as an exceptional measure granting 
the State special extraterritorial powers. It is limited to specific offenses defined 
by international law, and it must be exercised strictly in accordance with 
limitations imposed by that law. 

Actually, the universality principle does not apply in an automatic fashion to 
all international offenses, although there seems to be a presumption today in 
favor of such application. 10 A prime example of an international treaty, which 
defines an international offense yet explicitly adheres to the territoriality — 
rather than the universality — principle, is that o( Article 6 of the 1948 
Convention on the Prevention and Punishment of the Crime of Genocide. 11 

n 

The universality principle is strongly rooted in customary international 
criminal law. The incontrovertible "prototype" 12 is the age-old law for the 
suppression of piracy (currently codified in Article 105 o{ the 1982 United 
Nations Convention on the Law of the Sea). 13 Over the last few decades, 
universal criminal jurisdiction has been extended to numerous other offenses 
by conventional international law (see infra) , and in at least some instances the 
extension has in all likelihood already crystallized into generally binding 
custom. 

The proposition that belligerent States are accorded an international legal 
right to prosecute members of the enemy armed forces charged with war crimes 
has long been doctrinally recognized; 14 and was authoritatively restated in the 
early part of the twentieth century. 15 It was reaffirmed in connection with the 
horrendous war crimes of World War II, even prior to the postwar trials. 16 
These trials have had a salutary impact on the progressive development of 
international law in general (e.g., insofar as the evolution of the separate 
concept of crimes against humanity is concerned). 17 One of their invaluable 
achievements is that the postwar trials removed any plausible doubt that might 
have lingered about the practice of States confronted with war crimes. The 
trials established, first and foremost, that all belligerents into whose hands war 
criminals have fallen can exercise concurrent jurisdiction. 18 The trials further 
demonstrated that belligerent States have jurisdiction over war crimes 
perpetrated by enemy civilians as much as by members of the enemy armed 
forces. 19 Additionally, the trials made it plain that a belligerent State is entitled 
to bring to justice not only enemy nationals but also nationals of allied or 

19 



The Universality Principle and War Crimes 



neutral States, 20 and that it can even assume jurisdiction over war crimes 
committed before its own entry into the war. 21 The corollary is that neutral 
States can equally prosecute belligerent war criminals. 22 

In the Eichmann trial, the Israel Supreme Court — which unequivocally 
endorsed the application of the universality principle to war crimes 23 — arrived 
at the conclusion that "no importance attaches to the fact that the State of 
Israel did not exist when the offenses [including war crimes] were 
committed." 24 This position has been reinforced by the judgment of the United 
States Court of Appeals (Sixth Circuit) in the Demjanjuk case of 1985: 

Further, the fact that the State of Israel was not in existence when Demjanjuk 
allegedly committed the offenses is no bar to Israel's exercising jurisdiction under 
the universality principle. When proceeding on that jurisdictional premise, 
neither the nationality of the accused or the victim (s), nor the location of the 
crime is significant. The underlying assumption is that the crimes are offenses 
against the law of nations or against humanity and that the prosecuting nation is 
acting for all nations. This being so, Israel or any other nation, regardless of its 
status in 1942 or 1943, may undertake to vindicate the interest of all nations by 
seeking to punish the perpetrators of such crimes. 25 

The extension of the purview of jurisdiction over war crimes of all stripes is 
perfectly justifiable. The import of bringing the universality principle to bear 
upon war crimes is that all States without exception — rather than merely 
belligerent States — are possessed of the power to mete out justice to any war 
criminal and that they can ignore the geographic, temporal, or national 
dimensions of the offense. 26 While some scholars continue what may be called 
a rear-guard action against acceptance of the universality principle as 
appertaining to war crimes, 27 by now it must be abundantly clear that the issue 
has been settled in customary international law. 28 Patently, war crimes can be 
assimilated to piracy in the frame of reference of universality of jurisdiction. 29 

The four Geneva Conventions of 1949 for the Protection of War Victims 
include a common stipulation governing "grave breaches" o( these 
instruments: 

Each High Contracting Party shall be under the obligation to search for persons 
alleged to have committed, or to have ordered to be committed, such grave 
breaches, and shall bring such persons, regardless of their nationality, before its 
courts. It may also, if it prefers, and in accordance with the provisions of its own 
legislation, hand such persons over for trial to another High Contracting Party 
concerned, provided such High Contracting Party has made out a prima facie 
case. 30 



20 



Yoram Dinstein 



In accordance with Article 85(5) of the 1977 Additional Protocol I to the 
Geneva Conventions, the grave breaches referred to (as well as those 
supplemented by the Protocol itself) "shall be regarded as war crimes." 31 

In the opinion of the present writer, the text of the common clause of the 
Geneva Conventions constitutes a pellucid expression of the universality 
principle. True, this is not unanimously avowed. One eminent scholar argues, 
"The view that the 1949 Geneva Conventions provide for universal 
jurisdiction, though sometimes asserted, is probably incorrect." 32 But surely, 
the correct interpretation of the Geneva text is the one offered by 
Hans-Heinrich Jeschek: 

According to the Geneva Conventions of 1949, signatory States are not only 
empowered to punish war crimes, but also are obliged to do so, unless the accused 
is extradited to another signatory State (out dedere aut punire). The duty to 
punish attaches not only to the States to which the accused owes his allegiance 
or to the injured State, but to all the signatory States; this duty even extends to 
neutrals in an armed conflict, and it exists without regard to the nationality of 
the perpetrator or victim or to the place where the crime took place. Hence the 
Geneva Conventions provide universal jurisdiction for the punishment of war 
crimes coupled with a duty to prosecute, since the goal is the protection of 
common and universal interests. 33 

It is sometimes contended that only more serious war crimes (like the grave 
breaches of the Geneva Conventions) — rather than war crimes of a technical 
nature — activate the universality principle. 34 But this is a misconception. The 
correct view is that technical violations of the laws of war simply do not 
constitute war crimes. 35 Once violations of the laws of war qualify as war 
crimes, all come under the sway of the universality principle. 

In 1996, the International Law Commission defined War Crimes in Article 
20 of its Draft Code of Crimes against the Peace and Security of Mankind. 36 
Although, in part, the definition may give rise to debate, 37 it mostly consists of 
grave breaches of the Geneva Conventions and Protocol. 38 Article 8 of the 
Draft Code 39 "establishes the principle of the concurrent jurisdiction of the 
national courts of all States parties to the present Code based on the principle 
of universal jurisdiction" for crimes set out in Article 20. 40 

Ill 

The universality principle embraces solely offenses established and defined 
by international law, with a view to protecting the interests of the international 

21 



The Universality Principle and War Crimes 



community in its entirety. It must not be confused with the protective 
principle, which applies to the national interests oi individual States. Both 
principles admittedly lead to a similar outcome: States may assert criminal 
jurisdiction over foreigners acting extraterritorially. Nevertheless, the two 
principles proceed from radically different points of departure. One principle is 
designed to protect the single State against those trying to subvert its vital 
interests. That single State, which is the only one affected, is exclusively 
allowed to take action — no other State can invoke jurisdiction on its behalf 
(although any State may act on the ground of territoriality or active personality 
where appropriate). The second principle is equally protective, but it lends its 
aegis to the collectivity of States (the "family of nations")- "It is founded upon 
the accused's attack upon the international order as a whole." 41 All States are 
supposed to have a stake in suppressing delicta juris gentium, and all are 
simultaneously endowed with the authority to exercise criminal jurisdiction. 
Consequently, as a rule, there cannot be a genuine overlap between the 
universality principle and the protective principle. The present writer disagrees 
with the reliance on the protective principle — as an auxiliary base of 
extraterritorial jurisdiction, side by side with the universality principle — by the 
District Court of Jerusalem (with the approval of the Israel Supreme Court), in 
the context of genocide, in the Eichmann trial. 42 However, even if mass-scale 
genocide directed at the entire Jewish people can be exceptionally construed as 
impinging upon the vital interests of the State of Israel (albeit perpetrated 
before the birth of the State), thereby triggering the protective principle, only 
the universality principle is apposite to war crimes. 

There is no similar disconnection between the universality principle, on the 
one hand, and the territoriality, active personality, or passive personality 
principles, on the other. Universality postulates the irrelevance of either 
territory or nationality (of the victim as well as the offender). Still, if the 
territorial State or the State of nationality — when actually asserting criminal 
jurisdiction — prefers to act as such without invoking the universality principle, 
nothing prevents it from doing so. International law enables any State to turn a 
blind eye to the territorial or national link once universality is vouchsafed, but 
there is no compulsion to do so. When a State prosecutes members of its own 
armed forces who have committed war crimes, it benefits from an 
incontrovertible advantage if it acts in the name of the active personality 
principle rather than the universality principle. The trial can then be 
predicated solely on the domestic military penal code and need not take into 
account the limitations imposed on the State when availing itself of the special 
powers emanating from the universality principle. 43 By contrast, if the State 

22 



Yoram Dinstein 



wishes to prosecute enemy soldiers as war criminals, it has no alternative but to 
act within the framework of the universality principle (unless the victims are its 
own nationals or the crimes were committed on its territory) . 

IV 

When the universality principle is applicable, the outcome is concurrent 
jurisdiction of all States. If all States acquire jurisdiction, all can exercise it. 
Evidently, "[c]oncurrent jurisdiction is no obstacle to the exercise of 
jurisdiction by any single-state." 44 Yet, when (as in the above -quoted text of the 
Geneva Conventions) the universality principle is couched in a binding 
language, amounting to a duty — rather than in a permissive manner simply 
creating a right — the potential competition engendered by the multiplicity of 
choices of forum must be addressed. Hence, the duty incurred under the 
Geneva Conventions and other instruments is generally represented in 
optional terms: either to render or to prosecute the accused. 45 Normally, the 
Latin formula is adduced: out dedere autjudicare. The alleged offender can be 
rendered to another State (principally through the mechanism of extradition) 
for the exercise of foreign jurisdiction. 46 Still, when no such rendition takes 
place (because extradition is either not sought or denied, or for whatever other 
reason), there is a manifest duty to proceed with the exercise of local 
jurisdiction. The main thing is that one State or another will exercise its 
concurrent jurisdiction, so that an offender does not go scot-free. 

All too often (perhaps especially where war crimes are concerned), there are 
problems with both alternatives, judicare and dedere. States may be reluctant or 
even unable to institute judicial proceedings themselves. In Theodor Meron's 
words: 

Universal jurisdiction over war crimes means that all states have the right under 
international law to exercise criminal jurisdiction over the offenders. Most states 
do not have the necessary resources or interest to prosecute offenders when the 
state itself was not involved in the situation in question. Many states also do not 
have national laws in place that allow them to prosecute offenders. 47 

At the same time, extradition — if sought — is frequently frustrated for 
technical or other reasons. 48 

As against the all -too-familiar factual situation where no country is 
overeager to prosecute war criminals, it is necessary to pose the reverse state of 
affairs (however rare) wherein several countries vie to lay hands on the 
accused, each desirous of exercising in practice its respective (concurrent) 

23 



The Universality Principle and War Crimes 



jurisdiction. The question is whether any particular State, by dint of being more 
closely linked to the case at hand, has a better claim and therefore priority. 

No general rule regulating this matter has evolved in general international 
law. It is noteworthy, however, that no less than ten conventions pertaining to 
international criminal law have established a hierarchy formula in which a 
measure of priority is conferred on certain States (without negating the 
jurisdiction of others). The trail-blazing provision appears in Article 4 o( the 
1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 
which reads: 

1. Each Contracting State shall take such measures as may be necessary to 
establish its jurisdiction over the offence and any other act of violence against 
passengers or crew committed by the alleged offender in connection with the 
offence, in the following cases: 

(a) when the offence is committed on board an aircraft registered in that 

State; 

(b) when the aircraft on board which the offence is committed lands in its 

territory with the alleged offender still on board; 

(c) when the offence is committed on board an aircraft leased without crew 

to a lessee who has his principal place of business or, if the lessee has no 
such place of business, his permanent residence, in that State. 

2. Each Contracting State shall likewise take such measures as may be necessary 
to establish its jurisdiction over the offence in the case where the alleged offender 
is present in its territory and it does not extradite him pursuant to Article 8 to any 
of the States mentioned in paragraph 1 of this Article. 

3. This Convention does not exclude any criminal jurisdiction exercised in 
accordance with national law. 49 

What is the correct interpretation of Article 4? 5 In effect, the drafters of the 
Convention set forth that every State has a right (and indeed a duty) to 
exercise jurisdiction over the offense of aircraft hijacking. All the same, a 
double -tiered structure of jurisdiction is constructed. There are three preferred 
States with primary jurisdiction: the State of registration of the aircraft, the 
State where the aircraft lands with the offender still on board, and the State of 
the operator of the aircraft when it is on lease. 51 The expectation is that in the 
natural order of things, one of the three preferred States will be able and willing 

24 



Yoram Dinstein 



to exercise jurisdiction over the offender. However, should this not come to 
pass owing to failure oi extradition, whichever State has the hijacker in its 
hands is entitled and required to prosecute him, in keeping with the maxim out 
dedere out judicare. 

The double-tiered structure of jurisdiction (with different lists of preferred 
States, as the subject matter dictates) is also adopted in the following 
conventions pertaining to international criminal law: 

• Article 5 of the 1971 Montreal Convention for the Suppression of 
Unlawful Acts against the Safety of Civil Aviation. 52 Here there are four 
preferred States: the State of territoriality plus the three States enumerated in 
the Hague Convention. 

• Article 3 of the 1973 Convention on the Prevention and Punishment of 
Crimes against Internationally Protected Persons, including Diplomatic 
Agents. 53 The three preferred States are the State o( territoriality (explicitly 
including ships and aircraft registered therein), the State of nationality, and the 
State of passive personality (determined by virtue of function rather than strict 
nationality). 

• Article 5 of the 1979 International Convention against the Taking of 
Hostages. 54 The four preferred States are the first two listed in the 1973 
Convention (plus a discretionary jurisdiction over habitual residents who are 
stateless), the target State, and (where the State considers it appropriate) the 
passive personality State (based on the nationality of the victim). 

• Article 8 of the 1980 Convention on the Physical Protection of Nuclear 
Material. 55 The two preferred States are the first two indicated in the 1973 
Convention (without reference to stateless persons). There is also a specific 
reference in another paragraph to the State of export or import. 

• Article 5 of the 1984 Convention against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment. 56 The three preferred States 
are again the first two catalogued in the 1973 Convention (without provision 
for stateless persons), and the last of the 1979 Convention. 

• Article 6 of the 1988 Convention for the Suppression of Unlawful Acts 
against the Safety of Maritime Navigation. 57 The three preferred States are the 
flag State of a ship, the State of territoriality, and the State of nationality. Three 
other States are on a lesser standing, but still preferred in relation to the rest: 
the State of stateless habitual residents, the State of passive personality (based 
on nationality), and the target State. The interests of the flag State in case of 
several requests for extradition are particularly accentuated in Article 1 1 (5). 58 
The priority claim of the flag State to exercise jurisdiction is still not absolute, 
but it should have greater weight. 59 

25 



The Universality Principle and War Crimes 



• Article 4 of the 1 988 United Nations Convention against Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances. 60 The two preferred States are 
the State of territoriality and the State of the vessel flying its flag or the aircraft 
registered in it. A lesser status is bestowed on the State of nationality or 
habitual residence (irrespective of statelessness) and two additional special 
cases. 

• Article 9 of the 1989 International Convention against the Recruitment, 
Use, Financing and Training of Mercenaries. 61 The two preferred States are the 
first two enumerated in the 1979 Convention. 

• Article 10 of the 1994 Convention on the Safety of United Nations and 
Associated Personnel. 62 The two preferred States are the first two listed in the 
1973 Convention. The 1988 Maritime Convention formula of three 
semi-preferred States is also repeated. 

In all, notwithstanding inevitable variations in the multifarious instruments, 
the fundamental approach is the same. Whereas some preferred States are 
endowed with primary jurisdiction — with no mandatory priority — what 
emerges in the final analysis is universal jurisdiction. 63 It goes without saying 
that none of the conventions cited is germane to the issue of war crimes. Still, 
in future practice the nonbinding preference scheme may be looked upon with 
favor in that setting too. As for the choice of the States with a preferred status, 
judging by the trend highlighted in the conventions, it is probably safe to 
prognosticate that the three States to be generally deemed most closely 
connected to war crimes would be: the State of territoriality (including ships 
and aircraft registered therein), the State of active personality, and the State of 
passive personality. 



Concurrent jurisdiction of all States over war criminals — in consequence of 
the universality principle — means not only that the judicial authorities of each 
State separately can sit in judgment over alleged offenders, but that any 
combination of States can set up an international penal tribunal with a view to 
carrying out the same mission on a multinational level. Thus, in the 1945 
London Agreement for the Prosecution and Punishment of the Major War 
Criminals of the European Axis (initially adopted by the four big powers — the 
United States, the USSR, the United Kingdom and France — and later acceded 
to by many other Allied nations), an International Military Tribunal was 
established. 64 Pursuant to Article 6 of the Tribunal's Charter, it had 
jurisdiction over war crimes as well as crimes against peace and humanity. 5 

26 






Yoram Dinstein 



Following a celebrated trial conducted at Nuremberg, the 1946 Judgment 
proclaimed that in creating the International Military Tribunal the 
Contracting Parties to the London Agreement had "done together what any 
one of them might have done singly." 66 In other words, given the umbrella of 
the universality principle, either the United States or any other country could 
have prosecuted Nazi war criminals while acting alone. In joining forces, the 
Contracting Parties to the London Agreement merely pooled together their 
resources, avoided competition and conflict, and ensured that justice would be 
done. 

This is also the best rationalization for the creation by the UN Security 
Council, in Resolution 827 (1993), of the International Criminal Tribunal for 
the Former Yugoslavia, 67 with subject-matter jurisdiction, inter alia, over grave 
breaches of the Geneva Conventions and violations of the laws and customs of 
war (Articles 2-3 of the Tribunal's Statute). 68 The legitimacy of the 
establishment oi the Tribunal by fiat of the Security Council has been called 
into question by some commentators against the background of the UN 
Charter. 69 The Appeals Chamber of the Tribunal rejected at some length a 
challenge to its jurisdiction on that score. 70 Without getting into this complex 
issue, which is beyond the scope of the present paper, it must be perceived that 
irrespective of the range of powers allocated in the UN Charter, the 
establishment by the Security Council of an international penal tribunal with 
jurisdiction over war crimes is sanctioned by the universality principle. The 
Member States of the United Nations have done together what each of them 
might have done singly. No doubt, universal jurisdiction "is not synonymous 
with centralised jurisdiction," but the two are not mutually exclusive either. 71 

When an international penal tribunal is installed for the trial of war 
criminals, a problem that immediately comes to mind is whether the ordinary 
option of aut dedere autjudicare endures and whether the international tribunal 
has a status merely resembling that of an ordinary foreign court (with the same 
loose guidelines of preference in extradition discussed supra). Article 9 of the 
Statute of the Yugoslav Tribunal addresses the issue head on, and while 
confirming the concurrent jurisdiction of national courts, decrees that the 
Tribunal "shall have primacy over national courts" and that the Tribunal may 
formally request the latter to defer to its competence. 72 

The notion of primacy of an international tribunal over national courts was 
assailed by the defense in the Tadic case. The Appeals Chamber of the 
Yugoslav Tribunal held that when an international penal tribunal is created, "it 
must be endowed with primacy over national courts," for otherwise stratagems 
may be used to defeat the purpose of diligently prosecuting international 



27 



The Universality Principle and War Crimes 



offenders. 73 The Tribunal's explanation is conspicuously valid; indeed, perhaps 
the primacy concept should be construed within the ambit of that explanation. 
Intervention by an international penal tribunal in national proceedings (when 
a State wishes to exercise jurisdiction over a person in its custody) should not 
be undertaken unless there is reason to suspect that otherwise international 
justice is liable to be obstructed. In essence, this was also the opinion expressed 
by several Permanent Members of the Security Council in the course of its 
debates. 74 

This brings up a related issue. One of the most salient human rights 
recognized by contemporary international law is freedom from double 
jeopardy: no one can be retried for an offense for which he has already been 
finally convicted or acquitted by a competent court. 75 The pleas o{ autrefois 
acquit or autrefois convict are universally accepted as effectively barring further 
prosecution for the same offence. 

Under Article 86 of Geneva Convention III, the principle oinon bis in idem 
applies to prisoners of war, who may not "be punished more than once for the 
same act or on the same charge." 76 This provision, which covers the 
prosecution o( war criminals, is applicable when double jeopardy is derived 
from the operation of judicial authorities in the territory of a single State. But 
what about transboundary retrials of war criminals (or other international 
offenders)? The matter seems to be unsettled in customary international law. 77 
However, this writer believes that the concept oinon bis in idem should apply in 
principle to attempts by courts of several States to prosecute the same person 
for the same offense — while invoking the universality principle — no less than 
it does to parallel attempts by courts of an individual State. There is in fact 
doctrinal support for the position that a State ought to have no criminal 
jurisdiction over persons who have already been prosecuted elsewhere for the 
same offense. 78 

A vexing issue arises, however, in the singular context of concurrent 
jurisdiction over war crimes (and other international offenses). There may be a 
disquieting apprehension that the judicial authorities of a particular State who 
view the acts of the alleged offender with leniency (owing to ethnic, political, 
ideological or religious motivations) would go through the motions of a sham 
trial and either acquit him or impose on him — after conviction — a nominal 
sentence, thereby thwarting the administration of justice. If justice is to be 
done (and especially appear to be done), this apprehension must be dispelled. 

Article 10 of the Yugoslav Statute handles this matter with finesse. 79 In 
paragraph 1 it pronounces that no person shall be tried before a national court 

28 



Yoram Dinstein 



for criminal acts for which he has already been tried by the International 
Tribunal. Paragraph 2 provides: 

2. A person who has been tried by a national court for acts constituting serious 
violations of international humanitarian law may be subsequently tried by the 
International Tribunal only if: 

(a) the act for which he or she was tried was characterized as an ordinary 
crime; or 

(b) the national court proceedings were not impartial or independent, were 
designed to shield the accused from international criminal responsibility, 
or the case was not diligently prosecuted. 

Paragraph 3 adds that in imposing a penalty the International Tribunal shall 
take into account any sentence served by a convicted person as a result of an 
earlier national trial. 

Attention should be drawn to the fact that apart from the scenario of 
spurious or biased national proceedings, the text o{ the Yugoslav Tribunal's 
Statute also permits retrial if the original prosecution related to ordinary 
crimes. This is quite sensible. As indicated by the International Law 
Commission, should an individual be tried by a national court for a "lesser 
crime" (that is, national rather than international), the prior decision of that 
court should not immunize him from subsequent international proceedings 
expected to "encompass the full extent of his criminal conduct." 80 

The non bis in idem formula — used in the Yugoslav Tribunal's Statute — was 
replicated in the 1994 Statute of the International Tribunal for Rwanda; 81 it 
was followed by the International Law Commission (the same year) in Article 
42 of the Draft Statute for an International Criminal Court. 82 However, the 
formula does not come to grips with the prospect of a trial by a national court of 
State A subsequent to a trial for the same offense by a national court of State B. 
The International Law Commission, in Article 12 of its 1996 Draft Code of 
Crimes against the Peace and Security of Mankind, after reiterating the same 
formula in regard to international proceedings, goes on to specify that retrial by 
a national court of another State is allowed if that other State is the territorial 
State or was the main victim of the crime. 83 This is a most unsatisfactory 
solution to the dilemma, applying as it does even in the absence of any claim 
that the previous proceedings entailed a travesty of justice or that they were 
other than impartial. This writer is convinced that the same formula ought to 

29 



The Universality Principle and War Crimes 



apply to retrial by the national courts of another State as by an international 
tribunal. 

VI 

There are three dimensions to the criminal jurisdiction of States under 
international law: jurisdiction to prescribe (i.e., to legislate), jurisdiction to 
adjudicate (i.e., to put on trial), and jurisdiction to enforce (i.e., to punish). 84 
The need to distinguish between the three facets of jurisdiction becomes 
prominent when the principle of universality is invoked, as in the case of war 
crimes. 

Jurisdiction to Prescribe, Ex hypothesi, once the universality principle applies, 
no State is vested with jurisdiction to prescribe in the full sense of the term. 
The major premise underlying the universality principle is that the forbidden 
acts are delicta juris gentium, meaning that they have been criminalized by 
international law. The State "must ensure that its legislation does not extend 
the definition of the offense beyond the limits of international law." 85 It must be 
fully appreciated that only acts branded as war crimes by international law are 
subject to universal jurisdiction. Therefore, the domestic legal system is not 
free to add its own versions of putative war crimes to the list prescribed (and 
proscribed) by international law. Should the domestic legal system label as "war 
crimes" acts not deemed war crimes by international law, the universality 
principle would not be in effect. Only war crimes juris gentium can sustain a 
claim to universal jurisdiction. 

Jurisdiction to prescribe in the context of the universality principle has to be 
understood in a different sense. Every State has a right — and indeed a duty — to 
enact any enabling legislation required to lay the foundation for the domestic 
prosecution and punishment of international offenders. Such enabling 
legislation is ordained by each of the four Geneva Conventions of 1949: "The 
High Contracting Parties undertake to enact any legislation necessary to 
provide effective penal sanctions for persons committing, or ordering to be 
committed, any of the grave breaches of the present Convention defined in the 
following Article." 86 

Jurisdiction to Adjudicate, Jurisdiction to adjudicate in criminal matters means 
the prosecution and trial of offenders. Traditionally, jurisdiction to adjudicate 
has been treated as "ancillary to jurisdiction to prescribe." 87 However, in the 
case of the universality principle, every State is vested with jurisdiction to 

30 



Yoram Dinstein 



adjudicate notwithstanding the absence of jurisdiction to prescribe in the full 
sense of the term. 

When a State exercises its universal criminal jurisdiction to adjudicate by 
sitting in trial over war criminals, it must of course comply with all the 
standards of due process of law, as demanded by international law. 88 The duty 
devolving on a State in the absence of dedere is consequently only one of 
judicare rather than punire. It is entirely possible that indictment of an alleged 
offender will end in acquittal. 

The prosecutorial authorities in the State wherein the alleged offender 
happens to be present must have discretion in assessing the case at hand: much 
depends on where the witnesses and the rest of the evidence are. It is important 
not to prosecute hastily, lest there be acquittal and the principle non bis in idem 
apply. To be sure, the alleged offender may benefit from a potential gap in the 
system if the prosecutorial authorities in the State where he is present lack 
enough evidence to indict, yet another State (which does have enough 
evidence) fails to request extradition. Such a turn of events, characterized by 
neither dedere nor judicare, would produce a fiasco. 

Can a State exercise criminal jurisdiction over war criminals in absentia! 
u [L]iterally hundreds of war crimes cases" were tried in France and Belgium 
after both world wars in the absence of the accused. 89 Article 12 of the 
Charter of the International Military Tribunal (sitting at Nuremberg) 
expressly allowed the Tribunal to take proceedings against a person in his 
absence. 90 Bormann, who was not in custody, was indicted accordingly, and 
the Tribunal issued a special Order making it possible to go on with his trial; 91 
ultimately Bormann was convicted and sentenced to death. 92 A fictitious 
assertion of criminal jurisdiction over war crimes is apparently permissible. 
However, since Bormann has never been caught, his sentence only exposed 
the futility of in absentia proceedings. It is not clear what advantages are to be 
gained from such an academic exercise if the accused is not within grasp. In 
any event, the Nuremberg precedent was not followed in the case of the 
Yugoslav Tribunal, which does not possess jurisdiction to try persons in 
absentia. 93 

Jurisdiction to Enforce. Jurisdiction to enforce in the domain of war crimes 
means, primarily, punishment of persons convicted and sentenced by a 
competent court. Usually, trials of war criminals are held and sentences served 
within the boundaries of the same country. Yet, by agreement a State may keep 
in its prison facilities offenders convicted and sentenced by an international 
tribunal, 94 or even by a national court of a foreign country. 95 

31 



The Universality Principle and War Crimes 



Jurisdiction to enforce also relates to preventive and other coercive 
measures taken by a State with a view to the suppression of war crimes. Under 
the universality principle, every State is empowered to take these steps against 
international offenders. However, the empowerment is embedded in the 
assumption that the State is acting within its territory (including vessels and 
aircraft registered therein) or on the high seas. The universality principle does 
not authorize a State to take coercive action within the territory of another 
State without the latter's consent. Differently put, the police of one State are 
not allowed to enter the territory of another (absent consent) in order to arrest 
an individual, "not even to enforce law that is subject to universal 
jurisdiction. 

It is true that in egregious circumstances there have been occasions in which 
enforcement measures were carried out within the territory of another State 
without its consent. The abduction of Eichmann from Argentina for trial in 
Israel is a leading example. But it must be borne in mind that the crimes he 
perpetrated were staggering and that in realistic terms abduction "was the only 
means of obtaining physical jurisdiction over" him. 97 Security Council 
Resolution 138 (1960), which resolved the dispute over the abduction — and 
which declared (quite disingenuously) that "if repeated," the acts affecting the 
sovereignty of a Member State may endanger international peace and 
security — did not fail to note "the concern of people in all countries that 
Eichmann should be brought to appropriate justice for the crimes of which he is 
accused." 9 The Eichmann precedent must be considered overall as a rare 
exception rather than the rule: the rule of enforcement is and remains based on 
respect for the sovereignty of foreign States. 



Notes 



1. See 1(1) OPPENHEIM, INTERNATIONAL LAW 456 Qennings & Watts eds., 9th ed. 
1992). 

2. As the Permanent Court of International Justice stated, "this might be the outcome of 
the close connection which for a long time existed between the conception of supreme criminal 
jurisdiction and that of the state, and also by the especial importance of criminal jurisdiction 
from the point of view of the individual." S.S. Lotus (1927), 2 WORLD COURT REPORTS 36 
(Hudson ed., 1935). 

3. The effects doctrine dominated the opinion of the majority of the Court in the Lotus 
Case, id. at 38-39. 

4. See, e.g., the dissenting opinion of Judge John Bassett Moore in the Lotus Case, id. at 82. 

5. See, e.g., Tokyo Convention on Offences and Certain Other Acts Committed on Board 
Aircraft, Sept. 14, 1963, art. 4(b), 20 U.S.T. 2941, T.I.A.S. No. 6763, 704 U.N.T.S. 219, 2 
I.L.M. 1042, 1963 U.N. JURID. Y.B. 136, 137. 

32 



Yoram Dinstein 



6. For a full discussion, see Dinstein, The Extra-Territorial Jurisdiction of States: The 
Protective Principle, 65(2) ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 305-315 
(1993). 

7. Schachtei, International Law in Theory and Practice. General Course in Public International 
Law, 178 RECUEIL DES COURS 9, 262 (1982). 

8. Brownlie, Principles of Public International Law 304 (4th ed. 1990) (for 

quotation) . 

9. Gilbert, Crimes Sans Frontieres: Jurisdictional Problems in English Law, 63 BRIT. Y.B. INPL 
L. 415, 424 (1992). 

10. See THE AMERICAN LAW INSTITUTE, 1 RESTATEMENT OF THE LAW, THE FOREIGN 

Relations Law of the United States 257, §401 (3rd ed. 1987) [hereinafter 
Restatement]. 

11. Convention on the Prevention and Punishment of the Crime of Genocide, adopted by 
the U.N. General Assembly on Dec. 9, 1948, 78 U.N.T.S. 277, reprinted in THE LAWS OF 
ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER 
DOCUMENTS 231, 232-233 (Schindler & Toman eds., 3d ed. 1988). 

12. See Schachter, supra note 7, at 262. 

13. United Nations Convention on the Law of the Sea, 1982, Official Text 34 (1983), U.N. 
Doc.A/CONF.62/122. 

14. See DeVattel, The Law of Nations orthe Principles of Natural Law, bk. Ill, 

ch. VIII, §141; vol. 3, p. 280 (Fenwick trans., Classics of International Law ed., 1993). 

15. See 2 OPPENHE1M, INTERNATIONAL LAW 309-310 (2d ed. 1912). 

16. See, e.g., Cowles, Universality of Jurisdiction over War Crimes, 33 CAL. L. REV. 177, 218 
(1945). 

17. See Dinstein, Crimes against Humanity, in THEORY OF INTERNATIONAL LAW AT THE 

Threshold of the 2ist Century, Essays in Honour of K. Skubiszewski 891-908 

(Makarczyk ed., 1996). 

18. See, e.g., Hostages Case (U.S. v. List et al), 11 T.W.C. 1230, 1241 (U.S. Mil. Trib., 
1948). 

19. See Brand, The War Crimes Trials and the Laws of War, 26 BRIT. Y.B. INPL L. 414, 414 
(1949). 

20. see mcdougal & feliciano, the international law of war: transnational 

Coercion and World Public Order 716-717 (1994). 

21. See Akehurst, Jurisdiction in International Law, 46 BRIT. Y.B. INT'L L. 145, 160 n. 4 
(1972-1973). 

22. See Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 28 
BRIT. Y.B. INT'L L. 382, 392 (1951). 

23. Attorney-General v. Eichmann, 36 I.L.R. 277, 300-302 (Isr. S. Ct., 1962). See also 
Green, The Maxim Nullum Crimen Sine Lege and the Eichmann Trial, 38 BRIT. Y.B. INTL L. 457 
(1962). 

24. Id. at 304. 

25. Demjanjuk v. Petrovsky, 776 F.2d 571, 582-583 (6th Cir. 1985). 

26. See McDOUGAL & FELICIANO, supra note 20, at 718. 

27. See, e.g., Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, 

53 Brit. Y.B. InplL. 1, 12 (1982). 

28. See Randall, Universal Jurisdiction under International Law, 66 TEX. L. REV. 785, 800-815 
(1988). 



33 



The Universality Principle and War Crimes 



29. Even those maintaining that universal jurisdiction is not as widespread as suggested in 
this paper do not challenge its current attachment to war crimes. Some scholars sum up the 
position as follows: "There are probably today only two clear-cut cases of universal jurisdiction, 
namely the crime of piracy jure gentium, and war crimes." STARKE, INTERNATIONAL LAW 212 
(Shearer ed., 11th ed. 1994). 

30. Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in 
Armed Forces in the Field, 1949, art. 49 (second para.), 75 U.N.T.S. 31, reprinted in THE LAWS 
OF ARMED CONFLICTS, supra note 1 1, at 373, 391; Geneva Convention II for the Amelioration 
of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1949, 
art. 50 (second para.), 75 U.N.T.S. 85, reprinted in id. at 401, 418; Geneva Convention III 
Relative to the Treatment of Prisoners of War, 1949, art. 129 (second para.), 75 U.N.T.S. 135 
reprinted in id. at 423, 476; Geneva Convention IV Relative to the Protection of Civilian Persons 
in Time of War, 1949, art. 146 (second para.), 75 U.N.T.S. 287, reprinted in id. at 495, 547. 

31. Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to 
the Protection of Victims of International Armed Conflicts (Protocol I), 1977, 76 I.L.M. 1391 
(1977), reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 621, 672. 

32. Bowett, supra note 27, at 12. 

33. Jeschek, War Crimes, 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 294, 297 
(Bernhardt ed., 1982). 

34- See Carnegie, Jurisdiction over Violations of the Law and Customs of War, 39 BRIT. Y.B. 
INT'LL.402,423 (1963). 

35. See Dinstein, The Distinctions between War Crimes and Crimes against Peace, in WAR 

Crimes in International Law l, 3-4 (Dinstein & Tabory eds., 1996). 

36. Report of the International Law Commission, 48th Session (1996) , 1 10-1 1 2 (U.N. Doc. 
A/51/10, mimeographed) (Text). 

37. See Rosenstock, The Forty-Eighth Session of the International Law Commission, 91 AM. J. 
INT'LL. 365, 370 (1997). 

38. See Report of the International Law Commission, 48th Session, supra note 36, at 1 1 4- 1 1 5 
(Commentary) . 

39. Rat 42 (Text). 

40. Id. at 45 (Commentary) . 

41. Mann, The Doctrine of Jurisdiction in International Law, 111 RECUEIL DES COURS 9, 95 
(1964). 

42. Attorney-General v. Eichmann, supra note 23, at 18, 54 (D. Ct., 1961), 304 (S. Ct.). 

43. Thus, charges by U.S. authorities against American personnel relating to the 
commission of war crimes in Vietnam "were actually brought not on the basis of international 
law but of the law of the United States and the Uniform Code of Military Justice." Green, War 
Crimes, Crimes against Humanity, and Command Responsibility, NAVAL WAR C. REV., Spring 
1997, at 26, 40. 

44. Shachor -Landau, Extraterritorial Penal Jurisdiction and Extradition, 29 INT'L & COMP. L.Q. 
274,285 (1980). 

45. The option "either to surrender or to punish" a culprit first appears in GROTIUS, DE JURE 
BELLI AC PACIS, bk. II, ch. XXI, §IV; translation, vol. 2, at 528 (Kelsey trans., Classics of 
International Law ed., 1984). 

46. On the distinctions between extradition and other procedures (deportation and 
exclusion), see SHEARER, EXTRADITION IN INTERNATIONAL LAW 76-93 (1971). 

47. Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 573-574 
(1995). 



34 



Yoram Dinstein 



48. See van den Wyngaert, The Suppression of War Crimes under Additional Protocol I, in 

Humanitarian Law of Armed Conflict: Challenges Ahead, Essays in Honour of 

F. KALSHOVEN 197, 204-205 (Delissen & Tanja eds., 1991). 

49. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 
U.S.T. 1641, 10 I.L.M. 133 (1971), 1970 U.N. JURID. Y.B. 131. 

50. For a full treatment of the subject, see Dinstein, Criminal Jurisdiction over Aircraft 
Hijacking, 7 ISR. L. REV. 195-206 (1972). 

51. The choice of the three preferred States is debatable. See id. at 203-204. 

52. Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil 
Aviation, Sept. 23, 1971, 24 U.S.T. 564, 10 1.L.M. 1151 (1971), 1971 U.N. JURID. Y.B. 143,145. 

53. Convention on the Prevention and Punishment of Crimes against Internationally 
Protected Persons, including Diplomatic Agents, adopted by the U.N. General Assembly, Dec. 
14, 1973, T.I.A.S. No. 8532, 13 I.L.M. 41 (1977), 1973 U.N. JURID. Y.B. 75, 76. 

54. International Convention against the Taking of Hostages, adopted by the U.N. General 
Assembly, Dec. 17, 1979, 18 I.L.M. 1456 (1979), 1979 U.N. JURID. Y.B. 124, 125. 

55. Convention on the Physical Protection of Nuclear Material, 1980, reprinted in 

International Criminal Law, a Collection of International and European 

INSTRUMENTS 55, 57-58 (van den Wyngaert & Stessens eds., 1996). 

56. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment, adopted by the U.N. General Assembly, Dec. 10, 1984, 24 I.L.M. 535 (1985), 1984 
U.N. JURID Y.B. 135, 136. 

57. Convention for the Suppression of Unlawful Acts against the Safety of Maritime 
Navigation, 1988, 27 I.L.M. 672, 675-676 (1988). 

58. Id. at 679. 

59. See Halberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO 
Convention on Maritime Safety, 82 AM. J. INTL L. 269, 302-303 (1988) (on the priority claim of 
the flag State) . 

60. United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, 1988, 28 I.L.M. 497, 503-504 (1989). 

61. International Convention against the Recruitment, Use, Financing and Training of 
Mercenaries, 1989, 29 I.L.M. 91, 94 (1990). 

62. Convention on the Safety of United Nations and Associated Personnel, 1994, 34 I.L.M. 
485,488-489(1995). 

63. see lambert, terrorism and hostages in international law— a 
Commentary on the Hostages Convention 140-165 (1990). 

64- London Agreement for the Prosecution and Punishment of the Major War Criminals of 
the European Axis, 1945, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1 , at 9 1 1 , 
912. 

65. Rat 913, 914. 

66. Judgment, 1 T.M.W.C. 171, 218 (IntlMil. Trib., 1946). 

67. S.C. Res. 827 (1993), 32 I.L.M. 1203, 1204 (1993). 

68. Secretary-General's Report on Aspects of Establishing an International Tribunal for the 
Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law 
Committed in the Territory of the Former Yugoslavia (1993), id. at 1159, 1171-1172. 

69. See, e.g., Arangio-Ruiz, The Establishment of the International Criminal Tribunal for the 
Former Territory of Yugoslavia and the Doctrine of Implied Povuers of the United Nations, in DAI 
TRIBUNALI PENALI INTERNAZIONALI AD HOC A UNA CORTE PERMANENTE 31-45 (1996). 



35 



The Universality Principle and War Crimes 



70. International Tribunal for the Prosecution of Persons Responsible for Serious Violations 
of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 
1991, Appeals Chamber, The Prosecutor v. Tadic, Jurisdiction (Oct. 2, 1995) 8 
(IT-94-1-AR72), 35 I.L.M. 32, 41-45 (1996). 

71. See Fox, The Objection to Transfer of Criminal Jurisdiction to the UN Tribunal, 46 INT'L & 
COMP. L.Q. 434, 437 (1997) (for quotation). 

72. Secretary-General's Report, supra note 68, at 1177. 

73. The Prosecutor v. Tadic, supra note 70, at 52. 

74- Shraga & Zacklin, The International Criminal Tribunal for the Former Yugoslavia, 5 EURO. 
J. IntlL. 360, 371-372 (1994). 

75. See Article 14(7) of the 1966 International Covenant on Civil and Political Rights, 
adopted by the U.N. General Assembly, Dec. 16, 1966, 999 U.N.T.S. 171,6 I.L.M. 368 (1967), 
1966 U.N. JURID. Y.B. 1 78, 183. As observed by the Trial Chamber of the Yugoslav Tribunal in 
the Tadic case, "this provision is generally applied so as to cover only a double prosecution within 
the same State." International Tribunal for the Prosecution of Persons Responsible for Serious 
Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia 
since 1991, Trial Chamber, The Prosecutor v. Tadic, Decision on the Defence Motion on the 
Principle of non bis in idem (Nov. 14, 1995) 8 (IT-94-1-T, mimeographed). 

76. Geneva Convention III, supra note 30, at 460. 

77. See Paust, It's No Defense: Nullum Crimen, International Crime and the Gingerbread Man, 
60 ALB. L. REV. 657, 662 (1997). 

78. See Boss, The Extraterritorial Jurisdiction of States, Revised Draft Resolution, Article 8(6) , 
65(1) ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 148, 151 (1993). 

79. Secretary-General's Report, supra note 68, at 1177. 

80. Report of the International Law Commission, 48th Session, supra note 36, at 69. 

81. The provisions of Articles 9 (concurrent jurisdiction) and 10 (non bis in idem) of the 
Yugoslav Tribunal's Statute are replicated in Articles 8 and 9 of the Statute of the International 
Tribunal for Rwanda, established by the Security Council in Resolution 955 (1994), 33 I.L.M. 
1600, 1605-1606 (1994). The latter Statute does not deal, however, with war crimes. 

82. Report of the International Law Commission, 46th Session, (1994) 11(2) Y.B.I.L.C. 1, 57. 

83. Report of the International Law Commission, 48th Session, supra note 36, at 66. 

84. For the three categories of jurisdiction, see 1 RESTATEMENT, supra note 10, at 232 
(§401). 

85. Green, The German Federal Republic and the Exercise of Criminal Jurisdiction, 43 U. 

Toronto L.J. 207, 212 (1993). 

86. Geneva Convention I, art. 49 (first para.) ; Geneva Convention II, art. 50 (first para.) ; 
Geneva Convention III, art. 1 29 (first para.) ; Geneva Convention IV, art. 146 (first para.) , supra 
note 30, at 391, 418, 475-476 & 546-547. 

87. 1 Restatement, supra note 10, at 304. 

88. Essential rules pertaining to judicial proceedings against persons charged with war crimes 
are incorporated in Article 99 of Geneva Convention III, supra note 30, at 463-464. For the 
application of these rules to prisoners of war accused of war crimes, see COMMENTARY, III 

Geneva Convention 415-416 (de Preux ed., 1960). 

89. See LEVIE, TERRORISM IN WAR— THE LAW OF WAR CRIMES 35, 433 (1993). 

90. London Agreement, supra note 64, at 915. 

91. Order of the Tribunal regarding Notice to Defendant Bormann, 1 T.M.W.C. 102, 102 
(Int'l Mil. Trib., 1945). 

92. International Military Tribunal, Judgment, supra note 66, at 340-341, 367. 



36 



Yoram Dinstein 



93. See Guillaume, The Future of International Judicial Institutions, 44 INT'L & COMP. L.Q. 
848,857 (1995). 

94. See Article 27 of the Statute of the Yugoslav Tribunal, Secretary-General's Report, supra 
note 68, at 1188. 

95. If a trial for war crimes is conducted by a Detaining Power holding a prisoner of war, his 
transfer to another Power will additionally be governed by Article 12 of Geneva Convention III, 
supra note 30, at 434-435. 

96. Henkin, International Law. Politics, Values and Functions. General Course on Public 
International law, 216 RECUEIL DES COURS 9, 313 (1989). 

97. Silving, In re Eichmann: A Dilemma of La<w and Morality, 55 AM. J. INPL L. 307, 338 
(1961). 

98. S.C. Res. 138 (1960), 4 UNITED NATIONS RESOLUTIONS, SERIES II: RESOLUTIONS AND 

Decisions of the Security Council 14, 14 (Djonovich ed., 1989). 



37 






38 



Implementation of International 
Humanitarian Law in Future Wars 



Louise Doswald'Beck 



A 



NY ATTEMPT TO LOOK INTO THE FUTURE is fraught with 
difficulty and the likelihood that much of it will be wrong. If someone 
in 1898 had tried to foresee issues relating to the implementation of the laws 
and customs of war in the twentieth century, it is highly unlikely that he could 
have foreseen many of the major developments that have characterized 
warfare in this century and, therefore, the difficulties of implementation that 
these created. At best, he could have based his attempt on trends, in particular 
the development of mechanization at that time. Putting aside the possibility of 
dramatic events like a catastrophic nuclear war, or unforeseeable fundamental 
changes in the nature of warfare or the organization of international society, 
the most one can hope to do is to extrapolate from present trends and see how 
these could affect the implementation of the law in the future. In so doing, one 
may assume that human nature will not change, although the organization of 
society and of international relations could well do so. 

Implementation of international humanitarian law can take place on three 
levels, namely, by the individual undertaking an act during an armed conflict, 
by the society for which he is acting, and finally by the efforts of the 
international community. Generally speaking, laws that reflect the values of a 



Humanitarian Law in Future Wars 



society, or at least the interests of those in a position to enforce the law, have a 
good chance of being implemented. 

This article will attempt to analyze the factors that help or hinder the 
implementation of the law. It will first examine those factors that helped such 
law develop in customary practices, and analyze whether they continue to be 
present this century and what the prospects might be for the future based on 
present trends. The changes in international society that appear to be taking 
place and the effect these may have on implementation will then be 
considered. Finally, the article will consider certain mechanisms for 
implementation. With respect to implementation, this author does not assume 
that we should speak of implementation of the law in the next century as the 
law stands now, but assumes that changes and developments will take place in 
order to reflect developments in technology, methods of warfare, and society. 
This article will therefore consider implementation of the major principles of 
international humanitarian law that reflect its basic purpose as we understand 
it today, namely, the limitation of means and methods oi warfare and the 
regulation of the treatment of persons in the power of adverse authorities in 
order to limit the destructiveness and suffering of war. 

Factors That Helped Ensure the Implementation of the 
"Laws and Customs of War" 

First, if rules reflect existing general practice, it is likely that their 
implementation will not be particularly difficult, as efforts will probably be 
limited to keeping in line the occasional individual who behaves differently 
from others in his society. 1 It is noteworthy that prior to the attempts to codify 
the law in the late nineteenth century, the laws and customs of war were an 
articulation of the methods of warfare common to professional armies of that 
time. Nonprofessional groups were not expected to conform to this law and 
were, therefore, also not entitled to the privileges that were enjoyed by 
professional armies, especially prisoner-of-war status. The protection oi the 
civilian population was assured largely by methods of combat rather than any 
strict rule to that effect. The lack of such a strict rule is illustrated by the fact 
that civilians did suffer greatly during sieges; they could even be forced back 
into the besieged city if they tried to escape. 2 On the other hand, the practice 
in the Middle Ages whereby a city's population could be punished for 
resisting capture was considered dishonorable and uncivilized by the eighth 
century. 3 

40 



Louise Doswald-Beck 



This brings us to the second factor of importance, namely, the belief by 
combatants of the appropriateness of having certain rules in battle. Not only 
did concepts of honor prevent the sacking of cities after capture, but they also 
imposed a number of rules relating to the treatment of other combatants. Most 
important were the prohibitions on the use of poison, treachery, and attacking 
an enemy combatant once hors de combat. 4 These values and the sense of 
responsibility that they entailed were clearly instilled not only by the societies 
in which professional soldiers were brought up but also by the ethic of the 
armies themselves. The criminality o( violations of the law flowed fairly 
naturally from this sense of appropriate and inappropriate behavior. 

The extent to which reciprocity was important in the context of this ethic is 
uncertain, for one must be careful not simply to project onto society of that age 
the concept as perceived today. There is no conclusive evidence that 
"civilized" societies, as they saw themselves, strictly required reciprocity for 
every action vis-a-vis each other. 5 However, as far as behavior in relation to 
"uncivilized" societies was concerned, it was conditioned by their incapacity, as 
it seemed at the time, to apply or appreciate such niceties. Evidence of this is to 
be found in the Lieber Code 6 and in the arguments of the British when they 
wanted to introduce the use of dum-dum (hollow-point) bullets. 7 However, 
another type of reciprocity did become important with the introduction of new 
rules in treaties, namely, the international law rule that parties need to be 
bound by the treaties in question. This was particularly evident in the general 
participation clause of the Hague Conventions. 8 

A third factor which fosters implementation is ease in applying the law. As 
the law followed practice in the last century, not being able to apply the law was 
simply not a problem for professional armies. Any potential difficulty was met 
by allowing exceptions where considered expedient. The most obvious 
example of this was the rule that captured soldiers were not to be attacked; 
exceptions were made if keeping them as prisoners of war was impossible for the 
commander concerned. 9 

Fourthly, a lack of hatred for the enemy or of desire for personal vengeance 
clearly helps prevent atrocities of all kinds. The fact that recourse to war was 
not illegal, or even unusual, in the past helped armies view each other as fellow 
professionals doing their job. The notorious cruelty of non-international armed 
conflicts is at least partly caused by the emotions involved, the other important 
aspect being the frequent involvement o{ nonprofessional combatants. 

Finally, mental healthiness among combatants helps prevent atrocities. 
Although many may argue that only a deranged person would want to go into 
battle, there can be no doubt that the short battles of the past and the sense of 



41 



Humanitarian Law in Future Wars 



group cohesion in professional armies helped foster respect for the rules. On 
the other hand, prolonged and excessive stress has a very adverse effect on a 
soldier's capacity to abide by rules that require abstention from attack when he 
feels threatened. 

Factors That Help Or Hinder the Implementation of the Law: 
Twentieth Century Difficulties and Future Prospects 

Law and Methods of Warfare. The single most important factor in creating 
problems regarding the implementation of the law in the twentieth century was 
clearly the dramatic changes in the technology of warfare. This may well 
continue to be a problem in the twenty-first century. Whereas war-making 
methods in the nineteenth century were not dramatically different from those 
of previous centuries, thus allowing the gradual development of customs which 
reflected such practice, the sudden and major changes of the twentieth century 
plunged the world into disarray and resulted in the need for extensive changes 
in the law by treaty. 

From Law Reflecting Practice to Law Preventing Practice. The major 
motivation of the call by the czar of Russia for the conferences at the end of the 
nineteenth century and the beginning of the twentieth was the development of 
weaponry that he perceived was taking place. This was farsighted, for the 
extreme destructiveness o{ new technology was such that responsible 
politicians simply could not continue to let law reflect practice, which would 
have allowed whatever technology was capable of. However, this has meant 
that the law has increasingly been dictated by the need to curtail practice 
rather than reflect it, thereby creating tensions in relation to the 
implementation of the law in the twentieth century. Changes in the law largely 
prohibited certain new practices, such as the use of chemical weapons and 
massive bombardments of cities, although those who indulged in such practices 
were of the opinion that they had military utility. Other practices continued to 
be allowed despite some attempts to outlaw them; they have been responsible 
for a great deal of destruction and suffering. Examples include the use of 
submarines, bombardment by aircraft, mines, and long-range missiles. These 
inconsistencies have meant that the ethics of the law of war have become quite 
unclear to both normal soldiers and laymen. 

The law no longer takes the simple approach that all militarily useless 
cruelty is prohibited, with the rest in principle allowed; the sheer destructive 
nature of today's technical possibilities means that compromises have had to be 
made for the sake of the survival of humanity. However, these compromises do 

42 



Louise Doswald-Beck 



not always appear very consistent to the average person. The fact that certain 
bullets are prohibited but nuclear weapons have not been clearly and 
unambiguously prohibited creates scepticism regarding the seriousness of any 
of the law of war. The principle of proportionality in attack is an excellent 
example of compromise between military and humanitarian needs, but the 
implementation o{ this rule is somewhat subjective and unclear, and causes a 
certain degree of doubtfulness among those who hear it for the first time. The 
problem has been exacerbated by collateral damage that tends to occur after 
the event, such as water shortages or other highly negative effects of attacks on 
the power stations on which modern civilian society depends for survival. 10 
The difficulty that civilians have in practice in obtaining protection from the 
effects of hostilities has had the effect of creating questions as to the continued 
need for law to protect combatants from excessively cruel weapons. 11 

Potential New Weapons and the Need that Practice Again Reflect Law. The 
perceived incongruity between practice and law that has developed this 
century has created a serious image problem for international humanitarian 
law. Law has to reflect practice at least to some degree in order to be taken 
seriously. For the reasons indicated above, it was not possible simply to have 
the law allow the use of any new technological possibility. Therefore, what is 
needed is a means to make practice reflect the law, or at least the basic 
principles of the law; in so doing practice can again reflect certain values rather 
than having primarily to stop practice. This is particularly important as there is 
evidence that we are, at the end of the twentieth century, on the brink of a 
major change in war-making capability that could be at least as important as 
the major changes that took place earlier in the twentieth century relative to 
the nineteenth. The extent of research that is taking place to develop 
directed-energy weapons means that we could see a major change in methods 
of warfare. At present, it is difficult to imagine the full impact of this change. 12 
The ability of high-power microwaves and electromagnetic-pulse weapons to 
incapacitate electronics has enormous potential for the destruction of the 
life-support systems of technologically developed societies, which use such 
electronics for all kinds of purposes. The potential effect of acoustic beams and 
electromagnetic waves on persons is as yet not fully certain, nor is the extent to 
which they could be weaponized for antipersonnel purposes. Antimateriel laser 
beams are still being worked on, and one should not rule out the possibility of 
the development of antipersonnel lasers that target persons in different ways 
from the blinding laser weapons that have been recently banned. 13 Although 
the virtually instantaneous effect of these weapons, as well as their invisibility 
and silence, is bound to change methods of warfare in a major way, it would 

43 



Humanitarian Law in Future Wars 



require a military analyst with some imagination and foresight to indicate 
precisely how. 

Other high-tech developments could be space-based weapons and various 
types of nuclear weapons. The so-called "star wars" antimissile systems ran into 
technical, as well as legal, difficulties, but it is not beyond possibility that these 
could be developed during the next century to hit targets within the 
atmosphere; currently, it is prohibited only to deploy nuclear weapons in space. 
With regard to possible further developments in nuclear weapons, the 
Comprehensive Test Ban Treaty should in theory prevent further 
development, but there are indications that this is not the case in practice. 
Abstension in use is largely due to their radiation effects; therefore, any 
developments that could substantially reduce or even eliminate these effects 
could tempt some to make use of their enormous blast capabilities. 14 

Mention must be made of a potential new method of warfare that is already 
prohibited in law but that could have horrific effects if developed, namely, 
genetic weapons. The specter of this as well as of new and obviously 
preliminary developments in bio-technology has already motivated States to 
begin negotiations for the development of verification methods for the 
Biological Weapons Convention. 15 

Compared with these potential developments, present work on so-called 
"non-lethal" weapons seems minor in comparison. However, care must 
nevertheless be taken to evaluate their potential impact, because any that 
could cause permanent disability would certainly not be more desirable from a 
humanitarian point of view than normal conventional weapons, and it is not 
even clear that all are necessarily non-lethal. Potential effects on the 
environment should also be considered. 16 

This author does not suggest that there should be a stop to weapons 
development. Not only would such a proposal be totally unrealistic, but some 
new characteristics, such as increased accuracy or ways to render targets hors de 
combat while minimizing damaging effects, could be positive developments. 
However, it does mean that if we are to preserve certain values for the sake of 
the survival of some notions of humanity, then those in a position to direct 
weapons research and development requirements need to take their 
responsibilities seriously. Therefore, it is important that in designing new 
weapons the values of the laws of war be taken into account at the outset to 
ensure not only that weapons are capable of distinguishing between civilians 
and combatants but also that antipersonnel weapons cause neither inevitable 
death nor permanent incapacity. Another factor of importance is the 
increasingly fragile environmental state of our planet. This is not something 



44 



Louise Doswald-Beck 



that weapons developers had to think much about in the past, but for the sake 
of the survival of all of us it is earnestly hoped that this factor will be taken 
seriously in any new design of weapons. Given that much new weapons 
research these days is undertaken by companies which seek primarily to sell 
their products, it is important that States undertake to inform them beforehand 
of effects which are contrary to the rules or principles of international 
humanitarian law. 

Belief in the Appropriateness of the Rules, Belief in the appropriateness of 
humanitarian rules is the single most important factor for effective 
implementation of the law. As already indicated, it has been dealt a severe blow 
in the twentieth century by the inappropriateness of law primarily preventing 
practice rather than reflecting it. It is clear that law will need to be developed in 
order to address new methods of warfare. Some of such developments in the 
past have usefully helped reflect professional military utility; for example, the 
creation towards the beginning of this century of the notion of the military 
objective, arising from a new ability to bombard targets from a distance, helped 
reflect the military concept of economy of force. 

The crisis of the twentieth century. The extensive effects of modern warfare 
and the practice of conscription in the twentieth century has meant that war 
making is no longer within the province of a few professionals. The fact that 
war is no longer a lawful means of settling disputes may have also contributed 
to a reduction in the professional respect between soldiers on opposing sides. 
More seriously, basic notions of "honor" effectively died this century, 
frequently leaving in their stead a certain cynicism toward, disbelief of, or plain 
ignorance about the fact that warfare is meant to have rules. The international 
community has tried to counter the increased destruction and cruelty of 
warfare in the twentieth century by more extensive and detailed treaty law. 
However, the fact that this law is for the most part not known, or where it is 
known, not sincerely believed in, has led to serious difficulty in getting most of 
it applied. 

Some aspects of the law require interpretation by States, for example, the 
basic principles prohibiting weapons that are by nature indiscriminate or cause 
superfluous injury or unnecessary suffering. A lack of genuine belief in the 
importance of these rules renders ignoring them easy, and, generally speaking, 
States have not been willing to declare specific weapons illegal on the basis of 
these rules. 17 Instead, treaty prohibitions or a demise of use in practice have 
tended to result from the enormous pressure of public opinion. 18 Other rules 
are straightforward and detailed, in particular those in the 1949 Geneva 

45 



Humanitarian Law in Future Wars 



Conventions, which require certain respectful treatment of persons in the 
power of an adverse party. It would be possible to apply most of these rules 
without much difficulty if combatants and States genuinely believed in the 
importance of them. However, a number of factors have prevented this, 
including ignorance, hatred of the enemy, indifference, and competing 
interests. It is clear that if soldiers are to abide by the rules, they must be 
convinced that their commanders take such rules seriously and that to ignore 
prescribed behavior will result in military discipline. 19 There is evidence that 
this is beginning to improve, with more armies beginning to teach the laws of 
war seriously. However, the situation is very far from perfect, and the personal 
impression of this author, on the basis of speaking with military personnel from 
around the world, is that their instruction in the law has been patchy or 
nonexistent. 20 Respect for the law in future wars will depend to a great degree 
on whether instruction on the pertinent rules is improved during military 
training and whether the necessary sanctions are imposed, preferably by the 
soldier's own country, in case of violations. 

The Need to Repress Violations of the Law. The fact that international 
humanitarian law has not been considered to be of major importance by States 
is reflected in their failure to require the prosecution of war criminals; more 
than fifty years after the Geneva Conventions entered into force most 
countries have still not carried out their obligation to provide for compulsory 
universal jurisdiction over grave breaches. However, there can be no doubt 
that the prosecution of such criminals would go a long way toward convincing 
combatants of the serious nature of the law, rather than perpetuating its 
present image of theoretical lip-service, or at most of double standards by 
which some are prosecuted and others not. 21 

There is at present quite a good chance that an international criminal court 
will come into being in the next century, but whether this helps the image of 
international humanitarian law or hinders it will depend almost entirely on the 
jurisdiction of the Court. The present draft contains two provisions that could 
seriously harm how it is perceived: that the United Nations Security Council 
can prevent the Court from hearing such a case if it is itself dealing with the 
conflict in question; 22 and that the consent is required of the custodial State, 
the State where the act occurred, and the States of which the victim and the 
accused are nationals — consent that is in addition to their ratification of the 
treaty! 23 These draft provisions undermine both the notion of universal 
jurisdiction for war crimes and the rule of law, and they are likely to encourage 
further an image of double standards. In particular, the provision that requires 
the consent of the State of which the accused is a national would notionally 



46 



Louise Doswald-Beck 



provide a form of State immunity to war criminals. As the whole purpose of an 
international criminal court is to assure the prosecution of war criminals if they 
are not tried by their own courts or extradited for trial, it is essential that the 
court have inherent jurisdiction for such crimes. Otherwise, in the next 
century implementation of the duty to repress war crimes will prove no better 
than before. 

The Influence of Society in General Both an effective international criminal 
court and respect for the rules by combatants during conflicts depend on a 
genuine and clear understanding of the importance of limits in warfare and of 
respect for persons under control of an adversary. Detailed rules will inevitably 
vary over time to accommodate changes in society and in methods of warfare, 
but it is important to preserve the basic values. If these were viewed as 
important by society in general, soldiers would perceive them as normal when 
taught them during military training. The most insidious problem is that many 
persons are of the opinion that war should know no rules and that the only way 
to deal with adversaries is to be stronger, more prepared than they are, and 
willing to use any means to accomplish one's aims. This is based on a belief that 
such means are necessary for personal and national survival. Unfortunately, 
this is what the new generation seems to be primarily taught, through the 
media and war-play computer games. The same means could instill 
humanitarian law values, but unfortunately it is obvious that humanitarian law 
is either unknown or not believed in — or considered completely irrelevant — by 
those who produce these games and programs. This is a vicious circle that must 
be rectified somehow. Otherwise, we could face a situation in the next century 
where, with weapon developments which could be even more dangerous than 
those of this century, the rulers and combatants will be uninterested in 
upholding the values of international humanitarian law. 

The Influence of International Human Rights Law and Human Rights 
Organizations. In the second half of the twentieth century the driving factor in 
keeping notions of limits on behavior in wartime alive has been the 
development of human rights law. Despite the totally unrelated origin of this 
law — it was primarily motivated by a desire to render governments accountable 
for behavior towards their own citizens — the humanitarian, protective purpose 
of human rights law has had its influence on the views of certain parts of the 
international community. 24 The horrors of the Second World War not only led 
individuals to pressure States to include the promotion of human rights as a 
basic purpose of the United Nations 25 but also led to the creation of "crimes 
against humanity" as an international offense and to conclusion of the 1948 
Genocide Convention. Nor is it a coincidence that non-international armed 

47 



Humanitarian Law in Future Wars 



conflicts were regulated by treaty for the first time in 1949. 26 A major step was 
taken at the 1968 United Nations Human Rights Conference in Teheran, 
where a resolution entitled "Human Rights in Armed Conflict" encouraged 
States to afford more respect to existing humanitarian conventions and to add 
further rules to protect "civilians, prisoners and combatants in all armed 
conflicts." 27 The influence of human rights law can be clearly seen in the 
wording of the fair trial guarantees in the 1977 Protocol II Additional to the 
Geneva Conventions. 28 (Ironically, humanitarian law could have usefully 
influenced human rights law at that time, for the judicial guarantees found in 
the Geneva Conventions were not listed as nonderogable rights in the 
European Convention of Human Rights nor in the United Nations Covenants. 
Practice since then has shown that this was a mistake.) 29 

In some respects, the influence of human rights law was inevitable, for much 
in the Geneva Conventions that is devoted to protecting individuals overlaps 
with a number of civil rights as well as with economic and social ones. 
However, a major difference is that humanitarian law concerns itself with 
behavior by all parties to a conflict, a concept particularly important in 
non-international armed conflicts and for which human rights law is not 
entirely suited. We will return to the particular problem of such conflicts. 

Since the 1970s the United Nations has concerned itself with issues that 
include important aspects of international humanitarian law in human rights 
contexts, in particular in the Human Rights Commission and its 
Subcommission for the Elimination of Discrimination and the Protection of 
Minorities. 30 Human rights rapporteurs have also been asked to analyze 
subjects that primarily concern armed conflict. Some rapporteurs are theme 
based, such as the special ones for mercenaries 31 and for sexual violence during 
armed conflict, 32 while others are country based, such as those for 
Afghanistan, 33 the former Yugoslavia, 34 Iraqi-occupied Kuwait, 5 and 
Rwanda. 36 

The most dramatic recent example of this trend is the present negotiation of 
a Protocol Additional to the Convention on the Rights of the Child, which will 
be solely devoted to the recruitment and participation oi children in 
hostilities. 37 There can be no doubt that most of the impetus for these 
developments comes from nongovernmental human rights organizations, 
which represent important segments of civil society. 38 Resistance or protest 
from civil society has also had a major effect on limits on weaponry. The nonuse 
of nuclear weapons since the Second World War is largely due to such civil 
protest, as was the desire following the Vietnam war to prohibit the use of 
incendiary weapons. 39 The call for the ban on blinding laser weapons, although 



48 



Louise Doswald-Beck 



originated by the governments of Sweden and Switzerland 40 and primarily 
pursued by the International Committee of the Red Cross, was boosted by the 
support it received from various human rights organizations. 41 The most 
stunning recent development in this regard is the ban on antipersonnel mines, 
agreed to in principle by all States 42 and actively supported by over one hundred 
of them. 43 In just five years the initial call in 1992 by six nongovernmental 
organizations led to a coalition of about a thousand such entities, collectively 
referred to as the International Campaign to Ban Landmines. 44 In 1997 it 
received the Nobel Peace Prize for its work. The efforts were not entirely civilian, 
for the original founder of this coalition was the Vietnam Veterans of America 
Foundation, 45 and there can be no doubt that the decision by the International 
Committee of the Red Cross in February 1993 to support such a ban helped the 
process enormously. 46 Certain military personnel were also supportive of the 
process, by indicating that the harmful effects of antipersonnel mines outweigh 
any military utility they may have — a classic humanitarian law approach. 47 
However, despite some military support, there can be no doubt that the trend at 
present is for civil society to push most actively for restraints in methods and 
means of warfare and in the protection of its victims. 

What does this bode for the future? On the one hand, if this trend 
continues, it means that humanitarian law principles are still being fought for 
by some members of society. This should have the effect of saving at least some 
of the law. If this concern filters down to the average person to the extent that 
potential combatants consider restraint in armed conflict natural, a positive 
development will have taken place. If, on the other hand, we continue to have 
a clash of interests, with civil society continuing to make Herculean efforts to 
regulate one aspect of the law at a time, its efforts could be overtaken by 
contrary military or technological developments, and the tension between 
legal principle and practice will continue into the next century. 

Ease in Application of the Law, This issue is highly pertinent for the 
implementation of the law relating to methods of warfare. As already indicated, 
in the days when law followed practice and warfare largely consisted of 
hand-to-hand fighting and sieges, there was no particular difficulty in applying 
the law. However, with the introduction of aerial bombardment and missile 
warfare, the rules limiting attacks to military objectives and requiring 
proportionality are not always easy to respect. First, accurate intelligence is 
necessary in order to ascertain correctly which objects and persons are military 
objectives and what their exact location is. Secondly, correct identification of 
protected persons, vehicles, and buildings will continue to be problematic until 

49 



Humanitarian Law in Future Wars 



more sincere efforts are made to take advantage of the technological 
possibilities for identification. Thirdly, perfectly accurate weapons systems are 
still in the minority. Finally, any assessment of proportionality in attack has so 
substantial a subjective element that it is very difficult to gauge whether the law 
has been respected. 

Faced with these difficulties, both commanders and soldiers are likely to 
make mistakes, and it is not surprising that the number of civilian casualties has 
dramatically risen since the beginning of this century. 48 A study by two 
International Committee oi the Red Cross (ICRC) doctors has shown 
statistically what has always seemed common sense before, namely, the more 
use that is made oi bombs and missiles as opposed to bullets, the greater the 
number of civilian casualties compared with military ones. 49 It is the extreme 
difficulty of in practice respecting Protocol II to the Convention on Certain 
Conventional Weapons applicable to landmines, particularly the rules relating 
to limitation to military objectives and to marking and recording, that has led 
the international community to ban antipersonnel mines altogether as 
indiscriminate weapons. 50 

The phenomenon of fighting from a distance is said to adversely affect also a 
combatant's care as to the nature of the target, for he will not see the damage 
that is actually being done. 51 Present trends, with increasing computerization, 
are likely to exacerbate this problem. Unless major efforts are made to improve 
the accuracy of identification and the accuracy of weapons generally available, 
implementation of the law may well become more difficult. 

Another aspect of concern is the complexity of the legal regime itself; the 
more complex the rules, the more likely it is that they will not be followed 
accurately. This has been seen in the context of the law of naval warfare, where 
not only has there been no general treaty regulation since 1907, but the rather 
complex traditional customary rules were also extensively violated during the 
Second World War. 52 Even the Nuremberg Tribunal, in the cases of Admirals 
Doenitz and Raeder, confused the two separate notions of rescue after sinking 
of a vessel and removal of personnel before sinking in situations where capture 
is not possible. 53 It is for this reason that during the drafting in 1994 of the San 
Re mo Manual on International Law Applicable to Armed Conflicts at Sea 54 
this author argued for a simple rule prohibiting the attack and capture of 
passenger vessels carrying only civilians — rather than allowing capture and 
even destruction subject to certain rules, as now provided. 55 

The desire for simplicity can also be seen in the disappointment of many 
States with the complex rules for the use o{ antipersonnel mines in Protocol II 
Additional, as amended on 3 May 1996, to the Convention on Certain 

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Louise Doswald-Beck 



Conventional Weapons. Convinced that this would not really work in 
practice, they went on to adopt the straightforward ban on antipersonnel mines 
in Oslo in September 1997. The ban was embodied in the Ottawa Treaty in 
December. 

Attitude toward the Enemy, The prohibition of aggression, the rise in 
ideological wars, and the increasing intensity of non-international armed 
conflicts have all had the effect of introducing additional personal hatred for 
the enemy in the twentieth century. 56 For these reasons, the murder of civilians 
is particularly acute in non-international armed conflicts, an issue that will be 
revisited later. Unfortunately, in that there appears to be no downturn in this 
trend, the problem could well become much worse in the next century, making 
implementation more difficult, if not impossible in some situations. The 
present rise in fundamentalism and fanaticism is extremely perturbing in this 
regard. It is clear that in order to avoid the worst, the international community 
will need to make a particular effort to try to solve certain situations of tension 
caused by ethnic rivalries or other ideologies. It will also need to be more 
assiduous in punishing violations of the laws of war, including those in 
non-international armed conflicts. More serious efforts should also be made to 
limit the extent o{ proliferation of weapons, including small arms, to try to 
minimize the effects of such wars. 

Mental Health of Combatants. The longer the period of tension, the more likely 
it is that combatants will suffer from combat stress disorder and have greater 
difficulty in maintaining the discipline necessary to respect the rules in 
threatening situations. 57 Suggestions on improving this situation 58 include 
ensuring that weapon effect does not induce a sense of total helplessness in the 
soldier, 59 and giving soldiers leave on a regular basis. 60 The difficulty in accurately 
identifying hostile objects from a distance is exacerbated by stressful situations, a 
fact very clearly seen in the case of the USS Vincennes and its attack on the Iran 
Air airbus in July 1988. Both the International Civil Aviation Organization 
report and that undertaken by the United States attribute the mistake to the 
feeling of tension on board the Vincennes at the time and the conviction by the 
crew that they could well be attacked that day. This led a technician to so 
misread the information on the computer screen that he believed the opposite of 
what he saw. 61 This mistake occurred in circumstances that did not amount to a 
full-scale conflict, so one can only assume that in intensive armed conflict such 
mistakes will be more frequent. Close range and rapid approach of a hostile 
object makes the tension particularly acute. 

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Humanitarian Law in Future Wars 



Unfortunately, the situation is likely to get worse in the future if major 
developments in directed-energy weapons go ahead. This is primarily because 
the effects of such weapons are virtually instantaneous and may well occur over 
large distances, thus increasing the feeling of inability to defend oneself. 
Inappropriate preemptive attacks may well result, leading to further attacks on 
protected or civilian persons or objects. 

Changes in the Structure of International Society 

Inter-state Armed Conflicts Are in the Minority. This situation is not in itself 
unfortunate, for it shows that the rules prohibiting the use of force by one State 
against another have had some effect. This author is also not convinced that 
internal armed conflicts have actually become more numerous as such; rather, 
we are more aware of what is going on in all parts of the world, and the level of 
weaponry now available in such conflicts means that they have a more serious 
effect on the population. The extent o( political and commercial intercourse 
between States also means that the effects of such conflicts are far more serious 
in international relations than they used to be. However, the facts remain that 
inter-State conflicts are in the tiny minority and that unless this situation is 
seriously addressed, most of international humanitarian law is at risk of being 
perceived as largely irrelevant to modern realities. 

It is an obvious truism that international law is primarily aimed at regulating 
relations between States, human rights law notwithstanding. Despite Article 3 
common to the Geneva Conventions and Additional Protocol II, the detailed 
rules of international humanitarian law have been largely developed for 
international armed conflicts. The easiest legal application is in the case of a 
classic conflict between States. It is also a truism to state that far more 
numerous than international armed conflicts are non-international armed 
conflicts and actions by various international peacekeeping or peace- 
enforcement groups. 

Present trends seem to show that this situation is likely to continue into the 
next century. We are witnessing not only the breakup of a number of nations 
and increased stress on local government within nations, but also an increasing 
trend towards supranational law in the form of economic and political 
international organizations with extensive lawmaking powers and increasing 
influence in international affairs. At the same time, force is being used quite 
extensively by private groups of a financial or criminal nature, with effects that 
cannot be ignored. The challenge of the next century will be how to deal 
effectively with these developments. It will require a willingness to venture into 

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Louise Doswald-Beck 



legal regulation that does not rely on classical methods of qualifying a conflict, 
which at present can determine only whether a conflict is international or 
non-international. 

Non-International Armed Conflicts, In practice, soldiers are not trained in two 
different ways, and this is reflected by the fact that most existing military 
manuals do not include one set of rules for international armed conflicts and 
another for non-international ones. The problem is mostly one of principle. It is 
unfortunate that a number of States are still unwilling to admit the formal 
applicability of more detailed rules for non-international armed conflict; their 
view is that this would amount to some kind o( interference in their internal 
affairs or could be seen as granting international recognition to opposing forces. 
The negotiation of Additional Protocol II illustrated the widely differing views 
of States on this important issue. 62 

The Principle of Application of International Humanitarian Law. There being 
no indication that non-international armed conflicts are dropping in number, 
we are likely to see a continuation of this problem in the next century. In 
principle, professionally trained soldiers should be able to use the same 
methods for international and non-international armed conflicts. 

Application by Governmental Armed Forces. As far as behavior by government 
armed forces and other governmental institutions is concerned, they are in law 
bound by the wording of Common Article 3, Protocol II, where applicable, and 
relevant human rights law. As indicated above, willingness to regulate internal 
armed conflicts by treaty arose when international human rights law came into 
being. However, States that are not keen on human rights law tend also to 
resist further regulation o{ internal armed conflicts in international 
humanitarian law. The difficulties during the negotiation of Protocol II were 
such that the compromise which resulted in the definitive text came at the last 
minute, allowing very little discussion on the final wording. This has resulted in 
an incongruous situation, in that some of the rules in Protocol II 63 are more 
absolute in their protections than those to be found in Protocol I; it is obvious 
that reference to the equivalent articles in Protocol I will be necessary for their 
interpretation in practice. It is also hoped that the study presently being 
undertaken by the ICRC on rules of international customary law will further 
elucidate the rules generally accepted as being applicable in non-international 
armed conflicts. 64 It is quite likely that the study will indicate points of 
weakness where the international community could be encouraged to continue 
work towards greater specificity. 

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Humanitarian Law in Future Wars 



There is one area, however, where application of the rules by governmental 
armed forces is difficult — the distinction between the civilian population and 
others. Common Article 3 does not define what is meant by the "armed forces" 
of the other party, nor is there any definition o( who are considered to be 
combatants. Civilians are referred to simply as persons who do not take an 
"active" part in the hostilities. Does this mean that all other persons are 
combatants that can be attacked? What does "active" mean? Is it the same as 
the term "direct" found in Article 13 of Protocol II? Article 1 of Protocol II is 
better in this regard, as it describes the type of dissident armed forces that need 
to exist for Protocol II to come into effect. One could assume that only persons 
belonging to such groups are combatants and that all other persons are 
civilians. However, Article 13, paragraph 3, speaks of the protection of 
civilians unless they take "a direct part in hostilities." This could be interpreted 
as meaning that all persons that do not take such a direct part are civilians. 
However, this interpretation could conflict with the concept of "armed forces" 
referred to in Article 1, and it may well be that the reference to "direct" 
participation is only the equivalent of Article 51, paragraph 3, of Protocol I. 

These issues are not academic but rather very practical ones that regularly 
arise when attempting to assess whether certain attacks are lawful or not. It is 
very common in internal armed conflicts to have persons who mostly lead 
normal lives yet indulge in guerrilla activities from time to time. Can they be 
attacked at any time and in any place? We also find the phenomenon of 
civilians armed and trained to fight, ostensibly for their own protection, but 
also for the purposes of those who trained them. What is their status? What is 
the status of children who are asked to deliver messages to guerrilla groups, 
especially messages that are important for intelligence purposes? A major effort 
should be made to find answers to these basic questions so that the lawfulness 
of acts in non-international armed conflicts can be more readily assessed in the 
future. 

Application by N on- governmental Forces. As to the behavior of 
non-governmental groups, there are both theoretical and practical problems. 
The application of international law to non-governmental groups is still 
perceived by many governments as problematic despite the existence of 
Common Article 3 and the ratification of the Geneva Conventions by virtually 
all States. Recent attempts by the government of Colombia to indicate clearly 
that the new treaty banning antipersonnel mines applies to non-State entities 
ran into difficulties when certain Western governments could not accept the 
proposition that such entities might have responsibilities under international 
law. 65 In the end, Colombia had to content itself with the preambular 



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Louise Doswald-Beck 



paragraph indicating that the rules of humanitarian law apply to all parties to a 
conflict, and a statement at the closing session as to the importance of this 
point — a statement supported by the ICRC at the same session. 66 

Another example of the same problem arose in the context of the 
negotiations for the Protocol to the Convention on the Rights of the Child. 67 A 
number of States and the ICRC spoke in favor of a rule that would prohibit all 
parties to a non-international armed conflict from recruiting children under 
the age of eighteen years. 68 Several States could not accept this, and the draft 
now indicates two possible methods of dealing with this issue, neither of which 
is satisfactory. Draft paragraph 2 merely states that the government is to ensure 
that children under eighteen are not recruited; 69 draft "New Article A," 
presently in square brackets, would require governments to "take all 
appropriate measures to prevent recruitment of persons under the age of 18 
years by non-governmental armed groups involved in hostilities." 70 These 
proposals may be doctrinally pure in the minds of strict international lawyers, 
but they are hardly useful when it comes to the actual behavior oi 
non-governmental groups. 

The application of human rights law concepts to non-governmental forces is 
far more problematic than that of humanitarian law concepts. This is because 
human rights law is primarily conceived as consisting of the obligations of the 
government towards its own population, not the other way around. 71 This 
principle was another reason why a reference to the duties of 
non-governmental groups was not accepted for the draft Protocol to the 
Convention on the Rights of the Child. 72 Humanitarian law, on the other 
hand, is meant to apply to both parties to a conflict; indeed, the very notion of 
equality oi obligations is fundamental to the nature of this law. However, a 
major problem is that although States wished these obligations to be made clear 
in Common Article 3 and Additional Protocol II, they did not wish the 
corollary to be true, i.e., the same rights for rebel forces. 

One of the most important motivating factors for the respect of 
humanitarian law is the right to the status of prisoner of war, and the certainty 
of not being punished if one has not violated the rules oi international 
humanitarian law. Given that this is not the case in internal armed conflicts, 
what is the motivating factor for non-State entities to abide by international 
law? They can hope to gain some respect, perhaps, and there is also the 
recommendation in Article 6, paragraph 5, of Protocol II that the broadest 
possible amnesty should be granted at the end of hostilities. It is assumed, 
although not specifically indicated, that such amnesty should not apply to 
those who have violated humanitarian law, at least in any serious way. 



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Humanitarian Law in Future Wars 



However, this does not seem to be very persuasive, and another method will 
need to be found to create a motivation to abide by the rules of international 
law. In this regard, one could consider both the carrot and the stick. The carrot 
could be, for example, allowing respect of international law rules to be used in 
mitigation of sentence when such persons are tried in national courts. The 
stick could be more rigor in trying violators of the law before international 
tribunals, such as that created for Rwanda, the statute of which specifically lists 
crimes that are violations of international humanitarian law applicable in 
non-international armed conflicts. 73 For this reason, this author hopes that the 
new Statute of the International Criminal Court will include such crimes. 

Given that many persons using force in non-international armed conflicts 
have not been members of an official State army, it is not surprising that they 
are quite unaware of even the existence of rules applicable to such situations, 
let alone their content. The ICRC tries to teach some of these rules to such 
forces and has had some success, but its approach has certainly not always 
worked. 74 The only way to make such forces have some idea of these rules is to 
ensure that the civilian population as a whole is aware of them. This is certainly 
not the case at present, and most governments have made no particular effort 
to remedy this situation. In light of the increasingly destructive and 
destabilizing nature of non-international armed conflicts, a determined and 
serious effort in this regard must be made in the next century. However, it 
should be realized that knowledge of such rules cannot assure that they will be 
perfectly respected, even if supported by nongovernmental groups. As 
indicated above, some of the rules relating to the conduct of hostilities require 
quite sophisticated training and means. Therefore, the goal must be to reduce 
the incidence of direct attacks on civilians, torture, and other acts from which 
the forces involved could abstain if so inclined. 

The Problem of Weapons Availability. The final element of particular 
importance in relation to such conflicts is the ready availability of weapons. 
The end of the Cold War and relaxation in regulations relating to arms 
transfers led to significantly increased availability of weapons. The ICRC has 
been asked by the twenty-sixth International Conference of the Red Cross and 
Red Crescent to submit a report indicating whether there is a direct link 
between this availability and violations of the law. 75 This author suspects, using 
an analogy, that this effort will experience the same difficulty of proof as did the 
connection between smoking and cancer but that common sense dictates that 
it must be so. The more persons who without instruction or special training use 
force and have firearms, the more violations there are likely to be. This 
situation will get worse in the next century unless the international community 

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Louise Doswald-Beck 



finds the political will to stem such arms flows. This will require not only the 
creation of clear guidelines for transfers but also a means to verify their 
implementation. 

The Use of Armed Force by Private Persons or Groups. The armed forces o( 
private entities can take the form of mercenaries (although not a new 
phenomenon, one that has caused particular problems at the end of this 
century), security companies (hired by private industry), or criminal groups 
with extensive organization and war-making ability. 

Mercenaries. The use of mercenaries is an ancient practice that shows no 
indications of ceasing. In the past such persons simply had the same status, and 
were entitled to the same treatment, as the group for which they were fighting, 
which in turn depended on whether the conflict was international or 
non-international. However, since 1977 a significant segment of the 
international community has tried to eliminate this practice by, inter alia, 
refusing such persons prisoner-of-war status. 76 So long as mercenaries continue 
to exist, the problem of how to motivate them to abide by the rules of 
international humanitarian law will remain. In this regard, the carrot-and-stick 
approach suggested for nongovernmental groups in non-international armed 
conflicts could prove useful. 

Private Security Companies. A relatively new phenomenon is the practice of 
private security companies offering their services to governments or private 
industries, particularly in unstable areas where the government's normal police 
force cannot provide adequate protection. The best known example is 
"Executive Outcome," a security company which operates quite extensively in 
Africa; a number of others are active in a variety of contexts. 77 Although such 
companies are frequently referred to as "mercenaries" in the media, they do not 
fall within the traditional understanding o{ the term, nor do they easily fit 
within the legal definition found in Article 47 of Additional Protocol I. 78 
However, they do use military methods and consist primarily of ex-soldiers. 

A major issue is whether security companies are bound by any international 
rules. When used by governments in the context of an internal armed conflict, 
it is arguable that they form part of the government's forces and thus are bound 
by the rules of non-international armed conflict. However, they are not 
officially part of the government's army. Moreover, the concept of mercenaries 
in Article 47 of Protocol I applies only in international armed conflicts. Insofar 
as multinational or other industries use such companies, they ought to be 
accountable in some way for their behavior; yet they are neither a State nor a 
party to an internal armed conflict in any traditional sense of the word. The 

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Humanitarian Law in Future Wars 



security companies concerned are in principle bound by the law of the State in 
which they function. In reality, this will not have much effect if they actually 
engage in hostilities, which press reports say that they have done in some 
instances. Given the increasing influence of private industry and the growing 
importance of multinational companies, the international community is going 
to have to face this issue and decide whether the use of force by such companies 
against armed groups should be subject to international rules. If so, a departure 
will have to be made from the traditional application of international 
humanitarian law to governments and armed rebel groups. 

Criminal Groups. Criminal groups engaging in armed conflict include the 
Mafia and various "drug lords," whose activities are extensive not only 
internally but internationally. On the one hand, it seems abhorrent to suggest 
that they should be bound by international humanitarian law. On the other, it 
is difficult in law to justify any distinction inasmuch as traditional rebel groups 
in non-international armed conflicts are also considered common criminals by 
the authority they are opposing. The term "armed groups" in common Article 3 
is arguably general enough to cover criminal groups, but one generally assumes 
that humanitarian law has in mind groups fighting for a political purpose. This 
assumption derives from the historical context of the development of the law, 
but it is written nowhere. An added complication is that some rebel groups, 
including a number in Colombia, ostensibly have some political purpose (albeit 
often obscure), though they use straightforward criminal methods and drug 
money. 79 The lack of clarity as to whether international law is applicable in 
these situations makes its implementation very difficult. Even if one assumes, 
as this author does, that a group should possess some political purpose if 
humanitarian law is to be applicable, there remains the problem of determining 
the facts. Doing so can be extremely difficult in unstable, internal conflict 
situations. A tragic example of this was the murder of six employees of the 
ICRC on 17 December 1996 in Novye-Atagy, Chechnya. Although an official 
enquiry has opened, we are at at the time of writing still no nearer to 
establishing who was responsible, or even whether the attack clearly amounted 
to a violation of international humanitarian law, given that the various groups 
active in that highly volatile situation included both the criminal Mafia and 
armed political groups. 80 

Unfortunately, there is every indication that this type of unstable situation is 
likely to continue or even worsen in the next century. At the moment, 
international law does not really have an answer. 81 In particular, international 
humanitarian law, which is supposed to regulate the use of force, does not in its 



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Louise Doswald-Beck 



present form provide concrete and practical answers as to how the law can be 
applied to and implemented in such situations. 

Use of Force by Multinational and Supranational Entities, The use offeree by 
the United Nations was foreseen in Chapter VII of the United Nations 
Charter, which also assumed that the forces would be UN forces as such. 
However, only fairly recently has the question of whether the United Nations is 
bound by international humanitarian law been addressed in any serious way. 
The issue is not limited to the UN. Multilateral forces, whether acting under 
the umbrella of a regional security organization such as NATO or as ad hoc 
coalitions, also face the challenge of establishing which law applies. This issue 
is at present largely considered from the perspective of interoperability. The 
increasing financial and political interdependence of States is also leading to a 
situation where supranational actors could be increasingly active in armed 
conflict issues, the most obvious example being the new European Union's 
Treaty of Amsterdam. This trend means that international humanitarian law 
can no longer be limited to the behavior of individual nations; otherwise, the 
defense policies of such organizations and their use offeree will not be formally 
bound by any hard humanitarian law. 

United Nations Forces. The issue of which law binds United Nations forces is 
not a purely academic one. There have been allegations of violations of the law, 
particularly in the case of United Nations operations in Somalia, wherein UN 
forces have been accused of murdering noncombatants and of detaining 
Somalis without allowing contact with lawyers or their families. 82 Through 
participation agreements, personnel contributed by States fall formally under 
the command of the UN Secretary-General. Further, the United Nations is an 
international person in international law. Therefore, although one could argue 
that each contingent is still bound by the humanitarian law that binds its flag 
State, this conclusion is not at all satisfactory from either a legal or a practical 
point of view. The area of practice is actually rather confused, with the UN 
force commander being in theory responsible but with heads of national 
contingents retaining a certain control. 83 The actual name given to the force 
should be irrelevant, as the question of applicability of humanitarian law 
should arise when hostilities actually occur, whether the contingent was meant 
to be a peacekeeping force in the traditional sense or was given a more active 
role. 84 

The difficulty at present is that apart from cases of clear enforcement action, 
UN forces are not meant to be seen as belligerents in the traditional sense of 
the term. Humanitarian law is meant to apply to "parties to a conflict;" the 



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Humanitarian Law in Future Wars 



normal role of peacekeeping forces does not fit easily into this description. The 
fact that the United Nations is not a party to humanitarian law treaties 
compounds the problem. In past operations, agreements have indicated that 
such forces are bound by the principles of humanitarian law but not by a 
specific list of humanitarian law rules. 85 The current UN model agreement 
provides that such forces "observe and respect the principles and spirit of the 
general international conventions applicable to the conduct of military 
personnel." 86 The ICRC has tried through expert meetings to establish which 
rules are applicable to such forces, both when they intervene in 
non-international armed conflict situations and during international armed 
conflicts. 87 Given the difficulty of finding an answer (which this author believes 
is insuperable because the law simply does not envision the situation), the 
experts concerned drafted a document entitled "Guidelines for UN Forces 
Regarding Respect for International Humanitarian Law." fi The fate of this 
work is not clear, as these guidelines have not been officially adopted. 
However, personnel at the UN Secretariat are aware that it is an issue that 
needs resolving. 

It is highly likely that such forces will continue to be used in the next 
century, and it is simply not acceptable to allow it to remain unclear which 
international legal rules govern UN forces. The international community will 
need to accept and address the fact that while UN forces use force, the 
traditional scope of the application of humanitarian law treaties prevents the 
proper implementation of suitable rules for such forces. 

Multinational Forces. Multinational forces can be specifically authorized by 
the United Nations, either for an enforcement action, as with the coalition 
effort against Iraq in 1991, or to conduct a humanitarian mission, such as that 
in Albania. 89 In principle such forces apply humanitarian law by virtue of the 
international law obligations undertaken by each State. However, with such 
official authorization, the question arises as to whether such forces should 
undertake as a group to apply specific rules of humanitarian law. Not all States 
will be parties to the same treaties, and therefore problems of interoperability 
arise. This is true for forces of a regional organization such as NATO, 90 or ad 
hoc forces, like the multinational forces in Beirut in 1982-1984 91 or Liberia in 
1990. 92 

In that it is quite likely that multinational forces will continue to be used in 
the next century, proper implementation of humanitarian law requires greater 
clarity as to the rules under which they will operate and how those rules will be 
carried out in practice. 

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Louise Doswald-Beck 



Supranational Organizations. Although there is no such thing as 
"supranational" law — a matter of concern to some purist international 
lawyers — the fact remains that there are arrangements whereby States have 
given non-national organs powers that go well beyond the usual functions of 
international organizations. The most obvious example of this is the European 
Union. The Treaty of Amsterdam, adopted in 1997, contains provisions in 
Title V on a "common foreign and security policy." 93 Article J. 3 states, "The 
European Council shall define the principles of and general guidelines for the 
common foreign and security policy, including for matters with defence 
implications." More specifically, Article J.7 provides that: 

The common foreign and security policy shall include all questions relating to 
the security of the Union, including the progressive framing of a common 
defence policy . . . which might lead to a common defence, should the European 
Council so decide. It shall in that case recommend to the Member States the 
adoption of such a decision in accordance with their constitutional 
requirements. 

The Western European Union (WEU) is an integral part of the development 
of the Union providing the Union with access to an operational capability. ... It 
supports the Union in framing the defence aspects of the common foreign and 
security policy as set out in this Article. The Union shall accordingly foster 
closer institutional relations with the WEU with a view to the possibility of the 
integration of the WEU into the Union, should the European Council so 
decide. . . . 

The progressive framing of a common defence policy will be supported, as 
Member States consider appropriate, by co-operation between them in the field 
of armaments. 

Questions referred to in this Article shall include humanitarian and rescue 
tasks, peacekeeping tasks and tasks of combat forces in crisis management, 
including peacekeeping. 

The Union will avail itself of the WEU to elaborate and implement decisions 
and actions of the Union which have defence implications. 

Although the provision does not mean that the European Union will have 
its own army as such, it comes close. More importantly, the Union is to have its 
own policies relating to armed conflict situations, whether for its own defense 
or in relation to other armed conflicts. The European Union as such is not a 
party to humanitarian law treaties, but the question arises as to whether it is 

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Humanitarian Law in Future Wars 



bound by them. Does customary law bind it? These are fundamental questions 
for the implementation of humanitarian law. 

The ICRC attempted to persuade European Union States to include 
references to international humanitarian law in the sections o{ the treaty 
dealing with foreign and security policy. 94 Other parts of the treaty make 
reference to the importance o( respecting human rights law; therefore, such a 
mention of humanitarian law in the relevant sections would have been totally 
appropriate. These efforts were unsuccessful, an extremely unfortunate 
outcome in this author's opinion. 

In the light of such developments, States cannot continue to simply assume 
that the present scope of application of humanitarian law treaties suffices. 
What if the European Union uses the WEU in an internal armed conflict in a 
way that involves fighting? Does all law apply, or only that law applicable to 
internal armed conflicts? What of the duty of States in common Article 1 of the 
Geneva Conventions to respect them and ensure their respect? Does the 
obligation also apply to policies of the European Union as such? Which body 
will implement whatever is supposed to be the applicable law? The European 
Court of Justice even though there is no mention of humanitarian law in any of 
the European Union treaties? Do the general references to human rights in the 
Maastricht and Amsterdam treaties suffice? Such issues will have to be faced in 
the future, although it would be better to do so before becoming involved in a 
difficult situation. 

Implementation Mechanisms 

It may seem strange in an article about implementation to refer to 
implementation mechanisms only rather briefly, in closing. However, this 
author believes that the preceding issues are more fundamental to the 
problems oi implementation procedures. Mechanisms will only be efficient if 
the will exists to make them so, and that depends on the factors outlined 
earlier. Therefore, this section will not explore existing and potential 
implementation mechanisms in detail; 95 rather, it will look at factors that are 
relevant for such mechanisms in the future. 

National Mechanisms, Obviously, if the implementation mechanisms already 
foreseen for the national level had been carried out, we would be in a much 
better situation than we are now. In the face of the enormous challenge of 
rectifying the present situation, the ICRC's new Advisory Service 96 has had to 
set priorities. 97 It has therefore decided to try to create a snowball effect by 

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Louise Dosivald-Beck 



encouraging the creation of national commissions responsible for national 
implementation of humanitarian law. 98 It is also making particular efforts to 
induce States to comply with their duty under the Geneva Conventions to 
provide for universal jurisdiction for grave breaches." In this regard, there can 
be no doubt that if States could arrange for the direct applicability of the treaty 
provisions, a great deal would be gained. This could perhaps ultimately make 
national courts able not only to try war criminals more effectively but also to 
award reparation to victims of violations. At present, the latter possibility is 
being explored by the Human Rights Commission, 100 and there are cases being 
brought by individuals before national courts asking for reparations for 
violations committed during the Second World War. 101 Success by such 
individuals would almost certainly motivate governmental and nongovern- 
mental bodies to abide by their obligations with greater care. 

Some imagination and determination will also be needed to make sure that 
the civilian population as a whole is aware, at least at the most basic level, of 
certain rules of armed conflict. In formal teaching, the topic could be introduced 
into a number of traditional school courses, probably together with some notions 
of human rights. However, other methods will also be necessary. In particular, 
efforts should be made to stem teaching that encourages violations of the law. 
For example, behaviors that should not be introduced in computer games could 
be made known to game creators, and those that should be promoted could be. It 
has already been suggested that industries developing new weapons should 
become aware of certain international rules. They have at least one strong 
motivation for making an effort to do so, namely, the thought of the money they 
would waste should they develop a weapon that is then formally prohibited! 

International Mechanisms* Reference has already been made to the 
importance of an effective international criminal court, and to the conditions 
that are necessary for one. Provision for commissions of inquiry already 
exists, 102 and some investigation has occurred on an ad hoc basis, such as the 
investigation into violations of the law in the former Yugoslavia 103 and 
Rwanda, 104 and the country rapporteurs established in the context of the 
Human Rights Commission. 105 Assessing violations of methods of warfare will 
remain particularly difficult, because factors relating to the assessment of 
military objectives and proportionality have an important subjective element. 
However, such inquiry remains a useful mechanism, and it is hoped that it will 
be used more in the future. 

It remains to be seen whether other mechanisms could be introduced that 
would be useful to encourage better implementation of humanitarian law in 

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Humanitarian Law in Future Wars 



future wars. The suggestion has been made to introduce a reporting system in 
which States could inform a body on the measures they have taken to 
implement humanitarian law. 106 Such reporting systems are being used in other 
contexts, with mixed results (determined by a number of factors). 107 In the 
context of humanitarian law, such a system would have greater likelihood of 
acceptability and success once States have taken more effective national 
measures, which it is hoped will be the fruit of the Advisory Service's efforts 
and of the fuller understanding being gained these days of the importance of 
this aspect of law. 

One area that should certainly be improved is the evaluation, at the 
research stage, of the likely lawfulness of weapons. 108 At present, evaluations 
are made either at the national level or at the international level if a particular 
weapon is called into question. In the latter case, assessments are hampered by 
the lack of unclassified information. The case of blinding laser weapons was 
somewhat special because there had been extensive use of lasers by 
ophthalmologists for eye surgery and by the military for nonoffensive purposes; 
this enabled experts to extrapolate the likely features and effects of the 
forthcoming proposed weapons. 109 In most cases, however, a weapon has to 
appear on the battlefield, and even be generally available, before an evaluation 
can occur. Obviously, there will be resistance to legal evaluation at this stage 
given the investment that will have gone into its development. Over the last 
hundred years, no State leader has shown the kind o( altruism that the czar of 
Russia did when he convened an international conference to ban a weapon 
developed by his own scientists! 110 

This author is well aware of the highly sensitive nature of this issue, but 
given the crisis in the implementation of humanitarian law created by the 
totally new weapons of the twentieth century, and given the need for practice 
to be in conformity with law rather than in constant tension with it, an 
evaluation of the foreseeable effects of contemplated new weapons is the only 
way to implement this area of law effectively. Such an evaluation cannot be left 
to a totally national mechanism, but must include unbiased and neutral 
persons. With present rapid technological and biotechnological developments, 
this will be crucial for the twenty -first century. This process would be helped by 
the establishment of more objective data and criteria for evaluating whether 
certain weapons present problems in relation to the rules prohibiting 
inherently indiscriminate weapons or those that cause superfluous injury or 
unnecessary suffering. 111 A mechanism will also need to be found that will 
sufficiently protect the sensitive nature of the material. This author believes 
that if the political will were present, it would not be impossible to find one. 



64 



Louise Doswald-Beck 



Such a mechanism could also study the likely effects of means or methods of 
warfare on the environment. 112 The relative novelty of this problem makes it 
difficult at present to foresee with accuracy the extent and permanence of 
environmental damage that will occur. However, with the degree of present 
environmental degradation, the world's ever-increasing population, and 
forecasts of water shortages, 113 all the elements of future disaster are present. 
Not only are these factors likely to be the cause of a number of wars in the next 
century, but the problem will be exacerbated if means or methods of warfare 
significantly contribute to further environmental damage. 

Although it is a sensitive issue, further thought needs to be given to the fact 
that the possibility of nuclear war remains. Despite all efforts to stem 
proliferation, it is not impossible that a State or group could decide to use these 
weapons without fearing or caring about retaliation. All existing mechanisms 
to prevent such an occurrence need to continue. In addition, now that the 
Cold War has ended, more serious attention should be given to the Advisory 
Opinion of the International Court o{ Justice that there is an obligation to 
achieve "nuclear disarmament in all its aspects under strict and effective 
international control" through bona fide negotiation. 114 

Reference has already been made to the need to find better means to 
implement humanitarian law in non-interstate conflicts. Specific mechanisms 
should also be considered, for implementation by international and 
"supranational" bodies, of a system of reparations for victims of violations and 
of punishment for offenders. The implementation of the law in 
non-international armed conflicts and in so-called "internationalized" ones 
would benefit from an independent and impartial qualification o{ the conflict. 
The ICRC frequently does not do this publicly because of possible implications 
for its field work. The ideal situation, of course, would be for an independent 
court to undertake this task, but it could also be given to an independent 
commission. The experience of human rights law shows that mechanisms 
allowing for individual petition are particularly successful in ensuring that 
issues are addressed. 115 Through this channel, cases relating to situations which 
may qualify as armed conflicts have been brought under the European 
Convention on Human Rights, but the European Commission of Human 
Rights or European Court of Human Rights does not have to make such a 
qualification, as it is unnecessary for the application of human rights law. 116 

Finally, it is worth addressing the particular role of civil society, in particular 
nongovernmental organizations. Until now the implementation of 
humanitarian law has been largely left to governments. 117 The only official 
nongovernmental role was that given to the ICRC, in particular through its 

65 



Humanitarian Law in Future Wars 



visits to prisoners of war 118 and civilian internees 119 and its role relating to the 
Central Tracing Agency 120 in international armed conflicts. A recognition of 
additional roles that it may undertake, with the consent of the parties to the 
conflict, is found in various other parts of the Conventions, including roles 
during non-international armed conflicts. References are also made to national 
Red Cross or Red Crescent societies. The recognized role of the ICRC in 
fostering the development of humanitarian law means that in practice it is 
given observer status at diplomatic conferences relating to international 
humanitarian law. 121 In this context it is frequently requested to prepare 
documentation and allowed to make statements and proposals. 

Until now, other organizations have not had any such formal role. 
Therefore, it was a significant development when the Norwegian government 
decided to allow the International Campaign to Ban Landmines the same 
observer status as the ICRC during the diplomatic conference that led to the 
adoption of the antipersonnel mine ban treaty in September 1997. The 
contribution of this organization is specifically mentioned in the preamble to 
the treaty, the relevant paragraph of which makes a point of "stressing the role 
of public conscience in furthering the principles of humanity as evidenced by 
the call for a total ban o{ antipersonnel mines and recognizing the efforts to 
that end undertaken by the International Red Cross and Red Crescent 
Movement, the International Campaign to Ban Landmines and numerous 
other non-governmental organisations around the world." 122 Language from 
the Martens Clause was intentionally included. 123 This means that the 
"Ottawa process," which culminated in signature by many States of the treaty 
banning antipersonnel mines in Ottawa in December 1997, specifically 
recognized the importance of civil society monitoring the implementation of 
humanitarian law and being involved in its development where appropriate. 
Those States which did not participate in this process cannot be said to 
approve this practice, and therefore one cannot say that it is a universally 
accepted tendency. However, it does reflect the already existing practice of 
human rights bodies giving a recognized role to nongovernmental 
organizations. 124 The next century may well see, therefore, an important 
development in this direction for humanitarian law. 

Conclusion 

The twenty-first century could easily witness a catastrophic lack of 
humanitarian law implementation, with much of it being seen as irrelevant 
because the vast majority of conflicts are not classic inter-State ones. 

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Louise Doswald-Beck 



Dangerous new means and methods of warfare, ideological conflicts, and 
further rampant arms proliferation, all taking place in the context of an 
increasingly disturbing environmental situation, could easily spell disaster. 
Political will could prevent such a scenario, but this requires a willingness to 
depart from the usual way of thinking. Efforts should be made to establish how 
the law can be applied to nontraditional situations, and effective mechanisms 
put in place. Whether this will be done essentially depends on how important 
the regulation of armed conflict is considered to be when balanced against 
competing interests. It also depends on whether one is willing to be farsighted 
and realize the long-term interest in preserving the values of humanitarian 
law — an application of enlightened self-interest. The author is enough of a 
realist not to expect this to happen by itself. However, certain tendencies do 
give hope. Humanitarian law is more talked of these days than it was even a few 
years ago, and some mechanisms are beginning to work, albeit for the time 
being in a rather uneven fashion. The further involvement of civil society has 
been important for this development, and there is no obvious reason why it 
should weaken in the future. Therefore, it may well be that the implementation 
of humanitarian law, whatever its exact content needs to be in the next 
century, will improve compared with this one. One can try to be an optimist! 



Notes 



The views expressed in this paper are entirely the personal ones of the author. They do not 
necessarily represent the views of the International Committee of the Red Cross, and they in no 
way engage its responsibility. 

1. Throughout this paper, the term "practice" will be used in the sense of actual behavior 
on the battlefield, and not in the sense given to it for the purpose of assessing customary 
international law, which would include statements made by States. 

2. II Oppenheim, INTERNATIONAL LAW: DISPUTES, WAR AND NEUTRALITY, para. 157 
(7th ed., Lauterpacht ed., 1952). 

3. See SPAIGHT, AIR POWER AND WAR RIGHTS 240 (2d ed. 1933) ; General Orders No. 
100, Instructions for the Government of Armies of the United States in the Field, Apr. 24, 1863, 
art. 23, reprinted in THE LAWS OF ARMED CONFLICTS 3 (Schindler & Toman eds., 1988) 
[hereinafter Lieber Code]. 

4. Lieber Code, supra note 3, arts. 16 & 71. 

5. For example, the rule requiring the giving of quarter to those who surrendered or were 
hors de combat was probably respected by a soldier who took his reputation and honor seriously, 
whether the opposing side fully respected the rule or not. 

6. Lieber Code, supra note 3, art. 24. 

7. For a description of the negotiating history, see Kalshoven, The Soldier and His Golf 
Clubs, in STUDIES AND ESSAYS ON INTERNATIONAL HUMANITARIAN LAW AND RED CROSS 
PRINCIPLES IN HONOUR OF JEAN PICTET 369, 375 (Swinarski ed., 1984). The British delegate to 

67 



Humanitarian Law in Future Wars 



the 1899 Hague Conference argued that "savages" did not stop when shot, as "civilized" soldiers 
did. 

8. E.g., Convention Respecting the Laws and Customs of War on Land, Oct. 13, 1907, art. 
2, 36 Stat. 2277, 205 Consol. T.S. 277, reprinted in Schindler & Toman, supra note 3, at 63 
[hereinafter Hague IV]. 

9. Lieber Code, supra note 3, art. 60. 

10. This problem became an issue after the attack on electrical power stations during the 
second Gulf War. 

11. The difficulty in getting blinding laser weapons prohibited was outlined by this author 
in Obstacles to Regulating New Weaponry: Battlefield Laser Weapons, in ARMED CONFLICT AND 
THE NEW LAW: EFFECTING COMPLIANCE 107 (Fox and Meyer eds., 1993). A description of 
efforts to develop the law relating to certain weapons this century and prospects for the future is 
described in PROKOSCH, THE TECHNOLOGY OF KILLING (1995). 

12. A number of recent publications describe such developments. See, e.g., NATIONAL 

Research Council, Star 21 : Strategic Technologies for the Army of the 

TWENTY-FIRST CENTURY (1992); Gassman, High Power Microwave: The Silent Threat, 
4 ARMADA INTERNATIONAL 4 (1997); Cassidy, Guess Who's the Enemy, THE PROGRESSIVE, 
January 1996, at 22-24; RF Weapons, MICROWAVE NEWS, January/February 1996. 

13. Protocol IV on Blinding Laser Weapons, Oct. 13, 1995, 35 I.L.M. 1218 (1996), 
annexed to the Convention on the Use of Certain Conventional Weapons Which May be 
Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 19 I.L.M. 
1524 (1980) [hereinafter Certain Conventional Weapons Convention]. The Protocol is 
reprinted at Doswald-Beck, New Protocol on BlindingLaser Weapons, INTL REV. RED CROSS, No. 
312, 1996, at annex. 

14. See, e.g., Barnaby, Civil Science Could Drive Tomorrow's Nukes, 1 JANE'S INTL DEF. REV. 
61 (1997). 

15. A series of articles on the Biological Weapons Convention and present negotiation for 
strengthening its implementation have been published in the INT'L REV. RED CROSS, No. 318, 
1997, at 251-307. 

16. Recent literature on this subject includes DANDO, A NEW FORM OF WARFARE: THE 

Rise in Non-Lethal Weapons (1996); Lewer & Schofield, Non-Lethal Weapons: A 
Fatal Attraction? (1997). 

17. The International Court of Justice in its advisory opinion on nuclear weapons 
confirmed that these rules mean that certain weapons are illegal as a result of these rules whether 
there is a specific treaty prohibiting them or not. Legality of the Threat or Use of Nuclear 
Weapons, General List No. 95 (Advisory Opinion of the International Court of Justice, July 8, 
1996), paras. 78-79, 35 I.L.M. 809 (1966) thereinafter Nuclear Weapons]. 

1 8. This point will be returned to below in the context of the influence of human rights law. 

19. In this regard, see, for example, Hampson, Fighting by the Rules: Instructing the Armed 
Forces in Humanitarian Law, INTL REV. RED CROSS, No. 269, 1989, at 111; Begines, The 
American Military and the Western Idea, MIL. REV., March 1992, at 39. 

20. Particular efforts to improve this situation have been made by the ICRC over the last 
ten years, and mention should also be made of the courses organized by the International 
Institute of Humanitarian Law. Ideally, such courses ought not to need to provide basic teaching 
of the law but rather an exchange of views on implementation, trends, etc. 

21. Although there have been some war crimes trials, these have been the exception rather 
than the rule. The Nuremburg and Tokyo trials are still seen by many as "victors' justice;" the 
Yugoslav and Rwanda tribunals are recent and rare examples. The ICRC's Advisory Service is 



68 



Louise Doswald-Beck 



presently making major efforts to persuade States to implement in their internal legislation 
universal jurisdiction for war crimes. However, is it unfortunately noteworthy that most States 
were not keen to discuss the issue of national repression of war crimes during the first periodic 
meeting of States (to be held by Switzerland in January 1998). Such periodic meetings to discuss 
general problems in the implementation of international humanitarian law were formally 
accepted by the 26th International Conference of the Red Cross and Red Crescent, December 
1995, Resolution 1. 

22. Draft as it appeared at the working session of the preparatory committee, August 1997, 
U.N. Doc. A/AC.249/1997/WG.3/CRP.l/Rev.l, draff art. 23 para. 3. 

23. Id., draft art. 21 bis, para. 1. 

24. For a comparative analysis of both areas of law, see, for example, Doswald-Beck & Vite, 
International Humanitarian Law and Human Rights Law, INT'L REV. RED CROSS, No. 293, 1993, at 
94. 

25. U.N. CHARTER art. 1(3). 

26. Common Article 3 of the Geneva Conventions. 

27. A direct reference to human rights law was made in the preamble to this resolution in 
terms which reflected the preoccupation of much of the international community at the time: 

Noting also that minority racist or colonial regimes which refuse to comply with the . . . 

principles of the Universal Declaration of Human Rights frequently resort to executions 

and inhuman treatment of those who struggle against such regimes and considering that 

such persons should be protected against inhuman or brutal treatment. 

The resolution was adopted by a vote of 67-0, with two abstentions. This resolution, and two 

subsequent ones adopted by the General Assembly in 1968 and 1979 (Resolutions 2444 and 

2675 respectively), ultimately led to the negotiation and conclusion of the two Additional 

Protocols of 1977 to the Geneva Conventions. 

28. Article 6, which is very similar to Article 6 of the 1950 European Convention on 
Human Rights and Fundamental Freedoms, Article 14 of the United Nations Covenant on Civil 
and Political Rights of 1966, and Article 8 of the American Convention on Human Rights of 
1969. 

29. Recommendations of UN rapporteurs indicate that certain judicial guarantees should 
be non-derogable. Reports by Ms. Questiaux, U.N. Doc. E/CN 4/Sub. 2/1982/15, and Messrs. 
Chernichenko and Treat, U.N. Doc. E/CN.4/Sub. 2/1990/34- The ICRC was not as careful prior 
to the 1970s as it is now to ensure that human rights treaties give at least as much protection as 
humanitarian law ones. 

30. E.g., its discussions and work on reparations for violations of human rights and 
humanitarian law, U.N. Doc. E/CN.4/Sub.2/1996/17; impunity, U.N. Doc. E/CN.4/Sub.2/1996 
18; internally displaced persons, U.N. Doc. E/CN. 4/ 199 7/43; etc. 

31. Reports on the Question of the Use of Mercenaries as a Means of Violating Human 
Rights, U.N. Doc. Nos: E/CN .4/1 997/24, E/CN. 4/ 1996/2 7, E/CN. 4/1 995/29, E/CN. 4/1 994/23, 
E/CN.4/1993/18. 

32. Report on the Situation of Systematic Rape, Sexual Slavery, and Slavery-like Practices 
during Periods of Armed Conflict, U.N. Doc. E/CN.4/Sub.2/1996/26. 

33. Mr. Felix Ermacora, first appointed by the Economic and Social Council in 1984 by 
Resolution 1984/37. The mandate was subsequently renewed yearly. A new rapporteur, Mr. 
Choong-Hyun Paik, was appointed in April 1995. Many of the elements in these reports relate 
directly to the armed conflict situation in that country. 

34. Report on the Situation of Human Rights in the Territory of the Former Yugoslavia, 
U.N. Docs. A/47/666; E/CN.4/1992/S-19; E/CN. 4/1 996/6; E/CN. 4/ 199 6/9; E/CN. 4/ 199 7/8. 



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Humanitarian Law in Future Wars 



35. Situation of Human Rights in Occupied Kuwait, U.N. Doc. E/CN .4/1 992/26. 

36. Report on the Situation of Human Rights in Rwanda, U.N. Doc. E/CN .4/1995/1 2. 

37. Report of the Working Group on a Draft Optional Protocol to the Convention on the 
Rights of the Child on Involvement of Children in Armed Conflicts, U.N. Doc. No. 
E/CN.4/1997/96. 

38. Two notable human rights non- governmental organizations have begun to report on 
the respect or otherwise of international humanitarian law. See, e.g., MIDDLE EAST WATCH, 

Needless Deaths in the Gulf War (1991), and Amnesty International, Unlawful 
Killings During Operation "Grapes of Wrath" (1996). 

39. Although, due to the consensus rule, Protocol III of the Convention on Certain 
Conventional Weapons [19 I.L.M. 1394 (1980)] does not actually contain such a prohibition, 
there can be no doubt that the political sensitivity of incendiary weapons has in practice virtually 
eliminated their use against personnel. 

40. During the 25th International Conference of the Red Cross. 

41. Most notably, the Human Rights Watch Arms Project. For a descripion of the 
development of this treaty, see Doswald-Beck, supra note 13, at 272. 

42. G.A. Res. 51/45S, Dec. 10, 1996. 

43. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of 
Anti-Personnel Mines and on their Destruction, Sept. 18, 1997, 36 I.L.M. 1507 (1997) 
[hereinafter Mine Convention], and draft U.N.GA 1st Committee Res. A/C. 1/52/L.l, Oct. 22, 
1997, inviting all States to sign and then ratify this Convention. 

44. An important publication on this subject is HUMAN RIGHTS WATCH ARMS PROJECT 

& Physicians for Human Rights, Landmines: A Deadly Legacy (1993). 

45. Which hired Jody Williams, the corecipient of the Nobel Peace Prize, for the purpose. 
The organization published an in-depth study in 1995 on the effects of mines. ROBERTS &. 

Williams, After the Guns Fall Silent: The Enduring Legacy of Landmines (1995). 

The idea for such a study arose as one of the conclusions of a seminar on the subject of 
antipersonnel landmines hosted by the ICRC in Montreux in 1993. 

46. The ICRC was particularly active in this regard, with the considerable help of other 
components of the Red Cross and Red Crescent Movement. It made more use of the media and 
the press than for any other issue. 

47. See, for example, the conclusions of the ICRC-mandated military study 

Anti-personnel Landmines: Friend or Foe (1996), and the open letter to the same effect 

signed by 15 retired United States generals (including Norman Schwarzkopf) to President 
William Clinton in April 1996. 

48. The attacks on the Ameriyya air raid shelter by U.S. forces during the second Gulf War 
and on the Qana UN compound by Israeli forces are commonly attributed to mistakes. 

49. Coupland & Samnegaard, Development and Transfer of Conventional Weapons: The 
Implications for Civilian Casualties (unpublished manuscript on file with author). 

50. Anti-personnel Landmines, supra note 47, concl. 3 (for the difficulties). 

51. "With this distance between the user and the victim, the user feels less responsible for 
his or her actions." GROSSMAN, ON KILLING: THE PSYCHOLOGICAL COST OF LEARNING TO 

Kill in War and Society (1995). 

52. Hague Conventions VI, VII, VIII, IX, X, XI, XII, reprinted in Schindler & Toman, supra 
note 3, at 719, 797, 803, 881, 331, 819, & 825 respectively, http://www.tufts.edu/departments/ 
fletcher/multi/warfare.html. The London Declaration of 1909 did not come into force, and the 
London Proces- Verbal of 1936 only dealt, and rather imperfectly, with one aspect of submarine 
warfare. 



70 



Louise Doswald-Beck 



53. Judgment of the International Military Tribunal for the Trial of German War Criminals 
109 (London CMD 6946, 1946). 

54. San Remo Manual on International Law Applicable to Armed Conflicts 

AT SEA (with explanation) (Doswald-Beck ed., 1995). 

55. Id., paras. 136-140 & pp. 206-210. 

56. This is not always the case. For example, the lack of such personal hatred helped the 
implemention of the law in the South Atlantic conflict of 1982 between the United Kingdom 
and Argentina. 

57. A general analysis of combat stress disorder and its effects was made in the context of 
the Second Group of Experts convened by the ICRC in November 1990, one of the four 
meetings of experts relating to battlefield laser weapons. See Blinding Weapons, Reports of the 
Meetings of Experts Convened by the International Committee of the Red Cross on Battlefield 
Laser Weapons (Doswald-Beck ed., 1993), in particular the report by Dr. A. Shalev, Emotional 
Health Problems Arising from Battle Situations and Injuries Suffered in Battle, id. at 272-6. 

58. A thorough analysis of stress factors on soldiers and measures to be taken to reduce 
excessive and debilitating combat stress has been made by a military officer: DlNTER, HERO OR 

Coward: Pressures Facing the Soldier in Battle (1985). 

59. Blinding Weapons, supra note 57, at 281, 287-9. 

60. Id. See also DlNTER, supra note 58, at 73. 

61. ICAO Doc. C-W P/8708; Report of July 28, 1988 from Rear Admiral Fogarty, USN, to 
the Commander in Chief, U.S. Central Command, endorsed on 5 August 1988 by the 
Commander in Chief and on 18 August 1988 by the Chairman of the Joint Chiefs of Staff, at 
E-59.60&62. 

62. For a description of the negotiation, see Junod, Additional Protocol II: History and Scope, 
33 AM. U.L. REV. 29 (1983). 

63. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to 
the Protections of Victims of Non- International Armed Conflicts (Protocol II), June 8, 1977, 
arts. 3c, 11, 14, & 15, U.N. Doc. A/32/144, Annex II (1977), 16 I.L.M. 1942 (1977), reprinted in 
Schindler &. Toman, supra note 3, at 621. 

64. Study requested by the 26th International Conference of the Red Cross and Red 
Crescent, Resolution 1, which approved the recommendations of the Meeting of the 
Intergovermental Group of Experts for the Protection of War Victims, January 1995, reprinted in 

Inpl Rev. Red Cross, No. 310, 1996, at 83-^84. 

65. Colombian Proposal of Sept. 3, 1997, Doc. APL/CW.46. Another complication was 
that the conference did not want any language that could give the impression that the scope of 
application was other than in all circumstances. 

66. Closing session of the Oslo Conference, 18 September 1997. 

67. Working Group on Involvement of Children in Armed Conflict, 3d sess., Commission 
on Human Rights, March 13, 1997. 

68. See Report of the Working Group, supra note 37, at para. 1 15. 

69. Id., annex. 

70. Id. 

71. Although there are references to duties in the 1948 American Declaration of the Rights 
and Duties of Man, O.A.S. Off. Rec. OEA/Ser. L/V/I.4 Rev. (1965), and the 1982 African 
Charter on Human and People's Rights (Banjul Charter), 21 I.L.M. 58 (1982). 

72. This point was made forcefully by the delegate of the government of the Netherlands. 

73. Statute for the International Tribunal for Rwanda 35 I.L.M. 1598 (1940). 



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Humanitarian haw in Future Wars 



74- For example, Afghan rebel groups were successfully persuaded not to kill enemy soldiers 
when captured, and quite a major change in the behavior of rebel forces in El Salvador was also 
achieved. See, e.g., HAMMER, DEVELOPING A HUMANITARIAN AWARENESS: A CASE-STUDY 
OF EL SALVADOR IN THE 1980'S, (Henry Dunant Institute, 1987) . However, it does not always 
work. For example, a rebel group in Colombia specifically declined to apply Common Article 3, 
because it wished to continue to take hostages. 

75. Resolution 1, supra note 61, at 88. 

76. In particular, in art. 47 of Additional Protocol I. Protocol Additional to the Geneva 
Conventions Relating to the Protection of Victims of International Armed Conflicts, June 8, 
1977, art. 47, U.N. Doc. A/32/144, 16 I.L.M. 1391. 

77. See. e.g., Broker of War and Death, MAIL AND GUARDIAN, Feb. 28-Mar. 6 1997, at 12. 
Executive Outcome states that it only works for recognized governments. 

78. See, e.g., Mercenaries Eye Sierra Leone, GLOBE AND MAIL, Aug. 1, 1997. 

79. For a description of these kinds of activities, see BALENCIE &. DE La GRANGE, 
1 MONDES REBELLES: ACTEURS, CONFLITS ET VIOLENCES POLITIQUES (Ameriques, Afrique) 
(1996). The criminal and financial activities of Colombian rebels, and measures resorted to by 
private companies, are described on page 105. 

80. During his statement on 18 December 1996 to the Permanent Missions of States in 
Geneva, the President of the ICRC alluded to this difficulty. He questioned whether one could 
speak directly of violations of international humanitarian law or whether one had rather to speak 
more generally of violations of "values" of the international community. He specifically 
mentioned the need to find a way to assure, in practice, respect toward medical personnel, 
hospitals, and the protective emblem. Statement in the compilation of public statements of the 
ICRC relating to its activities in Chechnya and Northern Caucasus, July 1993-10 January 1997, 
LG 1997/013. 

81. The situation is even more acute when State structures have broken down. The 26th 
International Conference of the Red Cross and Red Crescent asked the ICRC to prepare a report 
on this problem, and the subject was briefly considered during the first Periodical Meeting on 
international humanitarian law that was convened by the Swiss government in January 1998. 
The preparatory document on this subject was prepared by the ICRC. 

82. See, e.g., Tittemore, Belligerents in Blue Helmets: Applying International Humanitarian 
law to United Nations Peace Operations, 33 STAN. J. INTL L. 61, 89-90 (1997). See also 

Canadian Government, Dishonoured Legacy: The Lessons of the Somalia Affair 
(1997). 

83. Id. at 80. 

84- Peacekeeping forces were first involved in combat in the Congo, but since then 
problems have occurred elsewhere, particularly when their mandate and instructions were not 
totally clear. For a short history of the various peacekeeping operations, see Liu, The Use of 
Force in U.N. Peacekeeping Operations: A Historical Perspective (J une 20, 1996) (paper 
delivered at the International Peace Academy in Vienna, July 1996). At present, there are 
sixteen UN peacekeeping operations active around the world (see 
http://www.un.org/Depts/DPKO/c_miss.htm). 

85. For more information and references to further literature on this issue, see Tittemore, 
supra note 81, at 87-89. 

86. Comprehensive Review of the Whole Question of Peacekeeping Operations in All 
Their Aspects, Model Agreement Between the United Nations and Member States 
Contributing Personnel and Equipment to United Nations Operations, Report of the 
Secretary-General, para. 28, U.N. Doc. A/46/185 (1991). 



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Louise Doswald-Beck 



87. Symposium on Humanitarian Action and Peace-keeping Operations, June 1994; 
Meeting of Experts on the Applicability of International Humanitarian Law to United Nations 
Forces, March 1995 (for expert meetings). 

88. The experts included governmental, academic and UN personnel, all acting in their 
personal capacities. 

89. S.C. Res. 1101 (1997). 

90. The issue of how to use its own peacekeeping forces has also arisen in the context of the 
Organization for Security and Cooperation in Europe. Such forces have not yet been used, 
although there was a long negotiation in 1993-1994 about their possible use in 
Nagorno-Karabach. The precise nature of such forces has not yet been established, and therefore 
they could face the same kind of difficulty as do those of the United Nations. For a description of 
how such operations could work, see GHEBALI, L'OSCE DANS V EUROPE POST-COMMUNISTE, 
1990-1996, 243-4 (1996). 

91. Consisting of U.S., British, French, and Italian contingents. See Nelson, Multinational 
Peacekeeping in the Middle East and the United Nations Model, INTL AFF., 1984/5, at 67, 71-80. 

92. The ECOWAS Monitoring Group was set up by decision of a summit of African States 
that met in Banjul. See BALENCIE &. DE La GRANGE, supra note 79, at 284- 

93. The Treaty's full title: Treaty of Amsterdam Amending the Treaty on European Union, 
the Treaties Establishing the European Communities and Certain Related Acts. 

94- In particular, it gave to the presidency of the European Union in September 1996 a 
proposal of wording. For Article J. 4 it suggested the following: "All decisions relating to a 
common defence policy and actions of the Union which have defence implications shall be in 
conformity with international humanitarian law and help ensure its respect." 

95. For a more extensive look at implementation mechanisms, see Roberts, The Laws of 
War: Problems of Implementation in Contemporary Conflicts, 6 DUKE J. COMP. & INTL L. 11 
(1995). 

96. Created on the recommendation of the Meeting of the Intergovernmental Group of 
Experts for the Protection of War Victims, supra note 64, at 84. 

97. For a general description of its activities, see National Implementation of International 
Humanitarian Law: Annual Report 1966, Advisory Service on International Humanitarian Law. 

98. A report of a meeting of experts on this issue was published as Committees or Other 
National Bodies for International Humanitarian Law (Pellandini ed., 1997). 

99. A meeting of experts was convened by the Advisory Service in September 1997 to 
discuss this issue in the context of civil law systems, and another is due to be held in 1998 for the 
context of common law systems. 

100. By Special Rapporteur Mr. Theo Van Boven. See note 30 supra. 

101. For example, cases presently being heard by the Tokyo district court relating to ill 
treatment of Dutch prisoners of war and the abuse of so-called "comfort women." Professor Frits 
Kalshoven was asked to appear as an expert witness for these cases in order to render his opinion 
as to whether victims of violations were entitled to reparations by virtue of Article 3 of Hague 
Convention IV of 1907. His opinion was in the affirmative. Information given by Prof. 
Kalshoven during the Fourth Hague Joint Conference of the American Society of International 
Law and the Nederlandse Vereniging vour Internationaal Recht, July 3, 1997. 

102. In particular, the International Fact-Finding Commission, established under Article 90 
of Additional Protocol I, but which has not yet been used. 

103. Commission of Experts established pursuant to S.C. Res. 780 (1992). 

104. Report of the Independent Commission of Experts established in accordance with S.C. 
Res. 935 (1994), U.N. Doc.S/1994/1125. 



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Humanitarian Law in Future Wars 



105. Examples given in notes 33-36 supra. 

106. During the Meeting of the Intergovernmental Group of Experts for the Protection of 
War Victims referred to in note 64 supra. The proposal was made by the Netherlands and 
supported by several States but did not command sufficient support to be included in the 
meeting's recommendations. 

107. A variety of factors are responsibile for the mixed results. These were thoroughly 
analyzed in a report entitled "A Comparison of Self- Evaluating State Reporting Systems" 
prepared by E. Kornblum for the meeting. Reprinted in INPL REV. RED CROSS, Nos. 304 and 305, 
1995, at 39 and 134 respectively. The whole text is also available as an offprint. 

108. Article 36 of Protocol I obliges States to make such an evaluation, but this provision is 
only an articulation of what States are obviously bound to do in a bona fide implementation of 
humanitarian law. 

109. Meeting of the First Working Group of Experts, supra note 57, at 95-173. 

110. Bullets that exploded on contact with the human body, banned by the St. Petersburg 
Declaration of 1868. 

111. This was done to some degree in the context of the Second Group of Experts on 
Battlefield Laser Weapons, supra note 57, at 179-183, 244-257, and 289-292. 

112. As a result of expert meetings, the ICRC drafted a document entitled "Guidelines for 
Military Manuals and Instructions on the Protection of the Environment in Times of Armed 
Conflicts," 1994, submitted pursuant to G.A. Res. A/RES/48/30, Dec. 9, 1993. However, these 
guidelines merely indicated the present content of humanitarian law having the function of 
protecting the environment; the problem of how to make the scientific evaluation still remains. 
It is also worth noting the Advisory Opinion of the International Court of Justice, which 
indicated the general requirements of States in this regard under customary law. Nuclear 
Weapons, supra note 17, paras. 29-30. 

113. On the potential problems of serious water shortages, see, e.g., Starr, Water Wars, 
FOREIGN POL'Y, Spring 1991, at 17; Remans, Water andWar, HUMANITARES VOLKERRECHT: 
INFORMATIONSSCHRIFTEN 4 (1995). 

114. Nuclear Weapons, supra note 17, para. 105 F. 

115. The 1950 European Convention on Human Rights; the 1969 American Convention on 
Human Rights; 1966 Optional Protocol to the U.N. Covenant on Civil and Political Rights (on 
individual petition) . 

116. Particularly pertinent cases are those of Ergi against Turkey before the Commission, 
and Aydin against Turkey before the Court. The case of Ergi is especially interesting as it 
concerns actions by security forces against Kurdish groups resulting in deaths of civilians. The 
Commission found a violation of Article 2 (the right to life), because the security forces did not 
take enough care in their operations to avoid civilians and because they did not thoroughly 
investigate the death which was the subject of this case: Muharrem Ergi v. Turkey, Report of the 
Commission, May 20, 1997, paras. 144-156. The case of Aydin concerned the ill treatment of a 
girl detained by security forces in the context of "serious disturbances" between members of the 
security forces and members of the PKK which, according to the government, had claimed the 
lives of 4,036 civilians and 3,884 members of the security forces. The Court found that there was 
a violation of Article 3 and that the treatment she suffered, including rape, amounted to torture. 
Aydin v. Turkey, Judgment of the European Court of Human Rights, Sept. 25, 1997, paras. 14 & 
80-87. Another interesting case concerned the situation in northern Cyprus, where the court 
found a violation to the right to property and the Turkish government responsible because of its 
military occupation of the area. Loizidou v. Turkey, Judgment of the European Court of Human 
Rights, Dec. 18, 1996, paras. 16-23 & 41-64. 



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117. Protecting Powers, formal complaints, investigations by the U.N., etc. The 
International Fact- Finding Commission would not be a governmental mechanism as such, for its 
members act in their personal capacities. Additional Protocol I, supra note 75, art. 90(1) (c). 

118. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 1 2, 1949, art. 
126, 6 U.S.T. 3316, 75 U.N.T.S. 135. 

119. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 
Aug. 12, 1949, art. 143, 6 U.S.T. 3516, 75 U.N.T.S. 287. 

120. Third Geneva Convention, supra note 118, art. 123, and Fourth Geneva Convention, 
supra note 119, art. 140. 

121. Statutes of the International Red Cross and Red Crescent Movement, as updated at the 
Twenty- fifth International Conference of the Red Cross (at which all signatories participate), 
art. 5, para. 2.g, Oct. 1995 (for the ICRC role in developing international law). 

122. Mine Convention, supra note 43, 8th pmbl. para. 

1 23. This author was present throughout the negotiations on the wording of this preambular 
paragraph. 

124. For example, their active observer status at the UN Human Rights Commission. 



75 



76 



IV 



The Development of the Law of Armed 

Conflict through the Jurisprudence of the 

International Criminal Tribunal for the 

Former Yugoslavia 



William Fenrick 



HE INTERNATIONAL CRIMINAL TRIBUNAL for the former Yugoslavia 
(ICTY) was established by Security Council Resolution 827 oi 25 May 
1993. ! Article 1 of the ICTY Statute states: "The International Tribunal shall 
have the power to prosecute persons responsible for serious violations of 
international humanitarian law committed in the territory of the former 
Yugoslavia since 1991 in accordance with the provisions of the present 
Statute." The provisions that follow in the ICTY Statute give the Tribunal 
specific subject-matter jurisdiction over grave breaches of the Geneva 
Conventions of 1949 (Article 2), violations of the laws or customs of war 
(Article 3), genocide (Article 4), and crimes against humanity (Article 5). 

There is little doubt that the decisions and practice of the ICTY and of its 
sister tribunal, the International Tribunal for Rwanda (ITR) 2 will have a 
significant impact on the development of the law of armed conflict. Judicial 
decisions are a subsidiary means for the determination of rules of international 



Jurisprudence of the ICT for the Former Yugoslavia 

law, not a source of law equivalent to treaties, custom or general principles of 
law. Further, there is no rule of precedent in international law as. such. The 
decisions and practice of the 1CTY, if they are to have a positive impact on the 
development of the law of armed conflict, must persuade external decision 
makers such as foreign ministry officials, officials in international organizations, 
other judges, military officers, and academic critics of their relevance and 
utility. Judicial decisions affect the development of the law of armed conflict 
insofar as they address legal lacunae (treaty negotiators can and do accept gaps 
in the law — judges cannot), as they add flesh to the bare bones of treaty 
provisions or to skeletal legal concepts such as military necessity or 
proportionality, and as they identify and give legitimacy to new legal 
developments, such as emergent custom. 

Applying its own statute, some of the Tribunal's decisions will be statute 
dependent and of limited relevance to the general development of the law of 
armed conflict. 3 The 1CTY has developed its own approach to procedural and 
evidentiary issues, topics essentially unaddressed in the law of armed conflict. 
Further, the Tribunal is concerned exclusively with offenses occurring in the 
territory o{ the former Yugoslavia. At times, one might regard the various 
factual scenarios as having been drafted for an exceptionally difficult Jessup 
moot court competition. One is, however, constantly reminded of the bitter 
reality of devastation and death that compelled the creation of the Tribunal. 
The complexity of the situation in the territory of the former Yugoslavia has 
compelled the Tribunal to devote substantial parts of most of its decisions to 
determining the nature of the conflict and the content of the body of applicable 
law. The treaty-based law of armed conflict has been drafted by and agreed to 
by representatives of States. The applicability of this body of law is dependent 
upon the classification of a particular conflict. A relatively elaborate body of 
law applies during international conflicts; a much more skeletal body of law 
applies to internal conflicts. 

This "two box" approach to the law is rooted in the reluctance of many 
states to accept what they perceive to be interference in their internal affairs. 
One might query why States would wish to do worse things to their own 
citizens in an internal conflict than to foreigners in an international conflict. 
Bearing in mind the complexity of the conflict(s) in the territory of the former 
Yugoslavia and the similar complexity of many other contemporary conflicts, 
one might also query the continuing utility of the two -box approach. The 
analytical contortions of the ICTY judges on the subject both demonstrate the 
need for a unified approach and suggest how such an approach might evolve. 

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As of 31 December 1997, the ICTY has confirmed twenty public indictments 
naming seventy-four indictees, 4 including three Muslims, fifteen Croats and 
fifty-six Serbs. It had ninteen indictees in custody, including three Muslims, 
four Serbs and twelve Croats. One trial, that of Dusko Tadic, a Bosnian Serb, 
had been completed, and the conviction was being appealed. One indictee, 
Drazen Erdemovic, a Bosnian Croat fighting on the Bosnian Serb side, 
submitted a guilty plea but then appealed his sentence. Two other trials were 
ongoing — that of Timofil Blaskic, a Bosnian Croat, and the joint trial of Hazim 
Delic, Esad Landzo, Zdravko Mucic, and Zejnil Delalic, three Bosnian Muslims 
and one Bosnian Croat. In addition, two trials, those of Zlatko Aleksovski, a 
Bosnian Croat, and Zlavko Dokmanovic, a Croatian Serb, were scheduled to 
start in January 1998, with several others to follow. The Office of the 
Prosecutor (OTP) of the ICTY has made a conscientious effort to devote 
resources to investigate offenses allegedly committed by Croats, Muslims, and 
Serbs in an evenhanded fashion. A glance at the list of indictees indicates that 
to date: (a) a substantial majority of the indictees are Serbs (usually from 
Bosnia), a significant number of the indictees are Croats (also usually from 
Bosnia), and a small number of the indictees are Bosnian Muslims; and (b) all 
of the Muslim indictees and almost all of the Croat indictees, but very few of 
the Serb indictees, are now in custody. 

Two comments about the approach of the OTP to investigations and 
indictments are necessary. First, the vast number of alleged offenses committed 
in the territory of the former Yugoslavia and the limited resources of the OTP 
mandate a selective rather than a comprehensive approach. The basic 
preference has been to conduct investigations related to persons of particular 
importance, to particularly atrocious incidents, or to persons alleged to be 
responsible for particularly heinous acts. Inasmuch as investigations are 
continuing, the fact that certain persons have not yet been indicted is not 
necessarily significant. The availability of evidence or o( an accused has 
occasionally affected decisions to conduct investigations. The OTP conducts 
its own investigations; it cannot and does not rely on untested information 
provided by others. Second, because of the complexity of the conflict and the 
fact that the ICTY Statute does not address the issue of included offenses, 
indictments have tended to include three types of charges for each alleged 
incident: an Article 2 (grave breaches) charge if the prosecution can establish 
the conflict is international, an Article 3 (violation of the laws or customs of 
war) charge if the conflict is determined to be internal, and an Article 5 (crimes 
against humanity) charge if the prosecution can establish that the offense 



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Jurisprudence of the ICT for the Former Yugoslavia 

occurred within the context of a widespread or systematic attack against the 
civilian population. 

To date, the ICTY has contributed to the development of the law of armed 
conflict by its decisions related to the application of the grave breach provisions 
of the Geneva Conventions of 1949; to the scope of the concept of violations of 
the laws or customs of war, particularly in internal conflicts; to the meaning 
and scope of crimes against humanity; to the scope of individual criminal 
responsibility, including the doctrine of command responsibility; and to 
potential defenses, including duress and the doctrine of reprisals. This article 
discusses each of these issues in turn. It will conclude with an assessment of 
probable future developments. 

Application of the Grave Breach Provisions 

Article 2 of the ICTY Statute gives the Tribunal the power to prosecute 
persons committing or ordering to be committed grave breaches of the 1949 
Geneva Conventions. Common Article 2 of the Geneva Conventions 
indicates that the Conventions apply in their entirety to all armed conflicts 
involving one or more High Contracting Parties on each side; to all cases of 
total or partial occupation of the territory of a High Contracting Party by the 
forces of another High Contracting Party; and to armed conflicts with Powers 
which are not parties to the Conventions if these Powers accept and apply the 
provisions thereof. A reasonable argument can be made that the grave breach 
provisions are part of customary law and apply to all international conflicts. 5 In 
any event, the Geneva Conventions applied throughout the territory of the 
former Yugoslavia during the period of conflict as a matter of treaty obligation. 6 
It should also be noted that Common Article 3 of the Geneva Conventions, 
which applies to non-international conflicts, encourages parties to such 
conflicts to enter into special agreements to bring into force all or part of the 
other provisions of the Conventions. All of the parties to the conflict have 
entered into a web of special agreements pursuant to Common Article 3 or to 
other general principles of humanitarian law. 7 

Unfortunately, simply stating that the sovereign entities in the territory of 
the former Yugoslavia were bound by the Geneva Conventions as a matter of 
treaty or custom does not resolve the issue of whether or not the grave breach 
provisions were relevant. At various times: (a) the Socialist Federal Republic of 
Yugoslavia (SFRY), which was succeeded on 29 April 1992 by the Federal 
Republic of Yugoslavia (FRY), was engaged in armed conflict against one or 
more o( Slovenia, Croatia, and Bosnia; (b) Croatia was engaged in armed 

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conflict against the SFRY, the so-called Republic of Serbian Krajina (RSK), the 
FRY, and Bosnia; (c) Bosnia was engaged in armed conflict against the SFRY, 
the FRY, the Republika Srpska (RS), Croatia, the HVO (the Bosnian-Croat 
entity), and the Bosnian Muslim faction controlled by Fikret Abdic; and (d) 
Slovenia was engaged in armed conflict with the SFRY. One is tempted to cut 
the Gordian knot and simply argue that all the fighting that occurred in the 
territory of the former Yugoslavia between 1991 and 1995 was part of one large 
international conflict. It is difficult, however, to fit all the fighting into an 
international armed conflict framework. As one example, it is difficult to see 
how the fighting between the Bosnian government and the Abdic faction can 
be regarded as part of an international conflict. 

The decision on the Defence Motion for Interbcutory Appeal on Jurisdiction 
(hereinafter Tadic Jurisdiction Decision) rendered on 2 October 1995 gave the 
Appeals Chamber a first opportunity to address the conflict classification 
issue. 8 The offenses with which Tadic was charged occurred in Bosnia in 1992; 
they involved a Bosnian Serb perpetrator and Bosnian Croat or Muslim 
victims. 

At the trial level, the defense argued that the conflict in issue was not 
international and that there were no Common Article 3 agreements bringing 
the grave breach provisions into effect. The prosecutor argued that for a 
variety of reasons the conflict was international and, to the extent the conflict 
had internal aspects, the grave breach provisions applied as a result of relevant 
Common Article 3 agreements. 10 The United States, in an amicus brief, argued 
that the events in the former Yugoslavia should be regarded as parts of a single 
international conflict and that violations of Common Article 3 could be 
prosecuted under the grave breach provisions of the Geneva Conventions. 11 
On appeal, the prosecution also argued that the Security Council had 
determined that the conflict in the former Yugoslavia was international and 
that this determination should be given full effect. 12 

The Appeals Chamber declined to decide on the nature of the conflict, 
leaving the issue to be resolved as a matter of mixed fact and law by the Trial 
Chamber. It did indicate in its decision that classification was a complex issue 
and that the Security Council was also aware of this complexity. 

[Wje conclude that the conflicts in the former Yugoslavia have both internal 
and international aspects, that the members of the Security Council clearly had 
both aspects of the conflicts in mind when they adopted the Statute of the 
International Tribunal, and that they intended to empower the International 
Tribunal to adjudicate violations of humanitarian law that occurred in either 
context. 13 

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Jurisprudence of the ICT for the Former Yugoslavia 

The Appeals Chamber went on to adopt a relatively conservative approach to 
Article 2 of the ICTY Statute, deciding that "in the present state of 
development of the law, Article 2 of the Statute only applies to offences 
committed within the context of international armed conflicts." 14 The majority 
observed further: 

Since it cannot be contended that the Bosnian Serbs constitute a State, arguably 
the classification just referred to would be based on the implicit assumption that 
the Bosnian Serbs are acting not as a rebellious entity but as organs or agents of 
another State, The Federal Republic of Yugoslavia (Serbia-Montenegro). As a 
consequence, serious infringements of international humanitarian law 
committed by the government army of Bosnia-Herzegovina against Bosnian 
Serbian civilians in their power would not be regarded as "grave breaches," 
because such civilians, having the nationality of Bosnia-Herzegovina, would not 
be regarded as "protected persons" under Article 4, paragraph 1 of Geneva 
Convention IV. By contrast, atrocities committed by Bosnian Serbs against 
Bosnian civilians in their hands would be regarded as "grave breaches," because 
such civilians would be "protected persons" under the Convention, in that the 
Bosnian Serbs would be acting as organs or agents of another State, the Federal 
Republic of Yugoslavia (Serbia-Montenegro) of which the Bosnians would not 
possess the nationality. This would be, of course, an absurd outcome, in that it 
would place the Bosnian Serbs at a substantial legal disadvantage vis-ti-vis the 
central authorities of Bosnia-Herzegovina. 15 

This particular observation, although unnecessary to the decision and of 
debatable accuracy, has had a substantial impact on consideration of the issue 
by the various trial chambers in subsequent cases. 

Although the defense would appear to have conceded the point and the 
prosecution argued in support of it, the Chamber was unwilling to consider the 
possibility of prosecuting under Article 2 of the Statute for grave breaches 
occurring in an internal conflict if appropriate Common Article 3 agreements 
had been concluded. It did, however, envisage the possibility of such 
prosecution under Article 3 of the Statute. 16 Implicitly, the Chamber decided 
that it was not possible to prosecute violations of Common Article 3 under the 
grave breach provisions of the Geneva Conventions. The relatively cautious 
approach to interpretation of Article 2 of the ICTY Statute taken by the 
majority can be contrasted with a much more progressive approach adopted in 
a separate opinion by Judge Abi-Saab. He was of the view that the Tribunal 
should assume jurisdiction under Article 2 for acts committed in internal 
conflicts on the basis of either a new interpretation of the Geneva Conventions 
or the establishment of a new customary rule ancillary to the Conventions. 

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William Fenrick 



As a matter of treaty interpretation — and assuming that the traditional reading 
of "grave breaches" has been correct — it can be said that this new normative 
substance has led to a new interpretation of the Conventions as a result of the 
"subsequent practice" and opinio juris of the States parties: a teleological 
interpretation of the Conventions in the light of their object and purpose of the 
effect of including internal conflicts within the regime of "grave breaches." The 
other possible rendering of the significance of the new normative substance is to 
consider it as establishing a new customary rule ancillary to the Conventions, 
whereby the regime of "grave breaches" is extended to internal conflicts. But the 
first seems to me as the better approach. And under either, Article 2 of the 
Statute applies — the same as Article 3, 4 and 5 — in both international and 
internal conflicts. 17 

The majority judgment in the Tadic Jurisdiction Decision set the standard for 
consideration of the conflict classification issue by the Trial Chambers. 

The major decisions at the trial chamber level addressing the classification 
issue to date have been the Rule 61 proceeding 18 concerning Ivica Rajic 19 and 
the Tadic Trial Decision. 10 These decisions have tended to focus on three 
related questions: (a) did an international conflict exist when the offenses were 
committed? (b) was the accused linked in an appropriate fashion to one side of 
the international conflict? and (c) were the victims in the hands of a party to 
the conflict or occupying power of which they were not nationals? Most of the 
victims are civilians, and Article 4 of the Civilians Convention states in part: 
"Persons protected are those who . . . find themselves ... in the hands of a Party 
to the conflict or Occupying Power of which they are not nationals." In the 
absence of any other relevant international decisions, and for better or worse, 
particular heed has been paid by the trial chambers to the Nicaragua decision of 
the International Court o( Justice when considering conflict classification. 21 
The Nicaragua decision was concerned with State responsibility for violations 
of international humanitarian law, not with individual criminal responsibility. 
Further, it was concerned with the peculiar facts of the U.S. -supported 
"contra" struggle in Nicaragua, and these facts are not necessarily similar to the 
facts arising in the territory of the former Yugoslavia. 

In the Rajic Rule 61 proceeding, a trial chamber consisting of Judges 
McDonald, Sidhwa, and Vohrah reviewed and reconfirmed an indictment 
against Ivica Rajic alleging that Bosnian Croat forces under his command 
attacked the Bosnian village of Stupni Do on 23 October 1993 and committed 
several offenses for which Rajic was responsible, including the grave breach of 
wilful killing recognized by Article 2(a) of the ICTY Statute. Bearing in mind 
the Tadic Jurisdiction Decision, the trial chamber was of the view that it was 

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Jurisprudence of the ICT for the Former Yugoslavia 

necessary to establish an undefined quantum of third-State (Croatian) 
involvement in the clashes between Bosnian government and Bosnian Croat 
(HVO) forces to convert an internal conflict into an international conflict. The 
prosecution advanced two theories: (a) the conflict was international because 
of the direct military involvement of Croatian forces engaged in combat with 
Bosnian forces in Bosnia; and (b) the conflict was international because, in the 
hostilities between Bosnia and the Bosnian Croats, the Bosnian Croats were 
closely related to and controlled by Croatia and its armed forces. In brief: 

13. The Chamber finds that, for purposes of the application of the grave 
breaches provisions of Geneva Convention IV, the significant and continuous 
military action by the armed forces of Croatia in support of the Bosnian Croats 
against the forces of the Bosnian Government on the territory of the latter was 
sufficient to convert the domestic conflict between the Bosnian Croats and the 
Bosnian Government into an international one. The evidence submitted by the 
Prosecutor provides reasonable grounds to believe that between 5,000 to 7,000 
members of the Croatian Army as well as some members of the Croatian Armed 
Forces ("HOS"), were present in the territory of Bosnia and were involved, both 
directly and through their relations with HB and the HVO, in clashes with 
Bosnian Government forces in central and southern Bosnia. 

The Chamber indicated, however, that the existence of an international 
conflict between Bosnia and Croatia during the appropriate period was not 
enough, by itself, to establish that grave breaches had been committed by 
Bosnian Croats. It was also essential to establish that Croatia exerted such 
political and military control over the Bosnian Croats that the latter might be 
regarded as an agent or extension of Croatia. The Chamber addressed the issue 
as follows: 

25. The Trial Chamber deems it necessary to emphasise that the 
International Court of Justice in the Nicaragua case considered the issue of 
agency in a very different context from the one before the Trial Chamber in this 
case. First, the Court's decision in the Nicaragua case was a final determination of 
the United States' responsibility for the acts of the contras. In contrast, the 
instant proceedings are preliminary in nature and may be revised at trial. Second, 
in the Nicaragua case the Court was charged with determining State 
responsibility for violations of international humanitarian law. It therefore 
rightly focused on the United States' operational control over the contras, 
holding that the "general control by the [United States] over a force with a high 
degree of dependency on [the United States]" was not sufficient to establish 
liability for violations by that force. Nicaragua, 1986 I.C.J. Rep. 11 115. In 
contrast, this Chamber is not called upon to determine Croatia's liability for the 

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William Fenrick 



acts of the Bosnian Croats. Rather, it is required to decide whether the Bosnian 
Croats can be regarded as agents of Croatia for establishing subject-matter 
jurisdiction over discrete acts which are alleged to be violations of the grave 
breaches provisions of the Geneva Conventions. Specific operational control is 
therefore not critical to the inquiry. Rather, the Trial Chamber focuses on the 
general political and military control exercised by Croatia over the Bosnian 
Croats. 

The Chamber then went on to determine whether the Bosnian civilian 
victims were protected persons in that they were in the hands of a party to the 
conflicts of which they were not nationals: 

37. The Chamber has been presented with considerable evidence that the 
Bosnian Croats controlled the territory surrounding the village of Stupni Do. . . . 
Because the Trial Chamber has already held that there are reasonable grounds 
for believing that Croatia controlled the Bosnian Croats, Croatia may be 
regarded as being in control of this area. Thus, although the residents of Stupni 
Do were not directly or physically "in the hands of Croatia, they can be treated 
as being constructively "in the hands of Croatia, a country of which they were 
not nationals. The Trial Chamber therefore finds that the civilian residents of 
the village of Stupni Do were — for the purposes of the grave breaches provisions 
of Geneva Convention IV — protected persons vis-a-vis the Bosnian Croats 
because the latter were controlled by Croatia. 

The Tadic Trial Decision has the most elaborate discussion o( the conflict 
classification issue to date. The Trial Chamber in this case consisted of Judges 
McDonald, Vohrah, and Stephen. As indicated earlier, Tadic is a Bosnian Serb 
who committed offences against Bosnian Muslims or Croats in Bosnia in the 
summer of 1992. In brief, the majority, consisting of Judges Vohrah and 
Stephen, held that the Geneva Conventions did apply in Bosnia throughout 
the period covered by the indictment, because of an ongoing international 
armed conflict between Bosnia and the SFRY/FRY. 22 The majority then made 
two unsubstantiated assertions in a single paragraph: that (a) the armed forces 
of the Republika Srpska (the VRS) and the RS as a whole were, at least from 19 
May 1992 onwards, legal entities distinct from the FRY armed forces (VJ) and 
from the FRY, and (b) members of the VRS were nationals of Bosnia. 23 May 19, 
1992 was significant as the date o( the dissolution of the old SFRY national 
army (the JNA) into two new components, the VRS and the VJ, and the formal 
withdrawal of the VJ from Bosnia. This was in spite of the majority observation 
that: 

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Jurisprudence of the ICT for the Former Yugoslavia 

115. The formal withdrawal of the JNA from Bosnia and Herzegovina took 
place on 19 May 1992; the VRS was in effect a product of the dissolution of the 
old JNA and the withdrawal of its non- Bosnian elements into Serbia. However, 
most, if not all, of the commanding officers of units of the old JNA who found 
themselves stationed with their units in Bosnia and Herzegovina on 18 May 
1992, nearly all Serbs, remained in command of those units throughout 1992 and 
1993 and did not return to Serbia. This was so whether or not they were in fact in 
origin Bosnian Serbs. This applied also to most other officers and 
non-commissioned officers. Although then formally members of the VRS rather 
than of the former JNA, they continued to receive their salaries from the 
Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) 
and the pensions of those who in due course retired were paid by that 
Government. At a briefing of officers concerned with logistics, General Dorde 
Dukic, then of the VRS but who had, until 18 May 1992, been Chief of Staff of 
the Technical Administration of the JNA in Belgrade, announced that all the 
active duty members of the VRS would continue to be paid by the federal 
government in Belgrade, which would continue to finance the VRS, as it had the 
JNA, with the same numerical strengths of officers as were registered on 19 May 
1992. The weapons and equipment with which the new VRS was armed were 
those that the units had had when part of the JNA. After 18 May 1992 supplies 
for the armed forces in Bosnia and Herzegovina continued to come from Serbia. 

Relying on its unanalyzed conclusions that the VRS and RS were legally 
distinct from the VJ and the FRY and that members o{ the VRS were Bosnian 
nationals, the majority went on to review the Nicaragua case in order to 
determine the proper rule for applying general principles of international law 
relating to State responsibility for de facto organs or agents to the specific 
circumstances of rebel forces fighting a seemingly internal conflict against the 
recognized government of a State, but dependent on the support oi a foreign 
power in the continuation of that conflict. The majority noted that the ICJ had 
a set a particularly high standard for determining whether or not the United 
States was responsible for the activities of the contras. The central portion of 
the ICJ judgment on this point was quoted: 

585. . . . United States participation, even if preponderant or decisive, in the 
financing, organizing, training, supplying and equipping of the contras, the 
selection of its military or paramilitary targets and the planning of the whole of its 
operation, is still insufficient in itself, on the basis of the evidence in the 
possession of the Court, for the purposes of attributing to the United States the 
acts committed by the contras in the course of their military or paramilitary 
operations in Nicaragua. . . . For this conduct to give rise to legal responsibility of the 
United States, it would in principle have to be proved that that State had effective 

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control of the military or paramilitary operations in the course of which the alleged 
violations were committed. 24 

The majority identified two substantial differences between the facts of the 
Nicaragua case and the facts in the Tadic case: first, the VRS was an occupying 
force, not a raiding army, 25 and second, the FRY clearly did control Bosnian 
Serb military activities until approximately 19 May 92. 26 

588. Consequently, the Trial Chamber must consider the essence of the test 
of the relationship between a de facto organ or agent, as a rebel force, and its 
controlling entity or principal, as a foreign Power, namely the more general 
question whether, even if there had been a relationship of great dependency on 
the one side, there was such a relationship of control on the other that, on the 
facts of the instant case, the acts of the VRS, including its occupation of opstina 
Prijedor, can be imputed to the Government of the Federal Republic of 
Yugoslavia (Serbia and Montenegro). . . . 

In doing so it is neither necessary nor sufficient merely to show that the VRS 
was dependent, even completely dependent, on the V] and the Federal Republic 
of Yugoslavia (Serbia and Montenegro). It must also be shown that the V] and 
the Federal Republic of Yugoslavia (Serbia and Montenegro) exercised the 
potential for control inherent in that relationship of dependency or that the VRS 
had otherwise placed itself under the control of the Government of the Federal 
Republic of Yugoslavia (Serbia and Montenegro). 

It was the position of the majority that the law applicable to State responsibility 
was also relevant to determining which body o{ law applied for individual 
criminal responsibility. In order to establish State responsibility, it was 
necessary to establish that the FRY exercised effective control over the VRS or 
the RS. Logistical support, personnel support, and common aims were 
insufficient. 

598. This leads the Trial Chamber to a consideration of two relationships of 
especial importance to the question which this Trial Chamber must determine. 
The first is the relationship of General Mladic, and hence the VRS Main Staff, to 
Belgrade. . . . The only evidence which the Prosecution was able to adduce as to 
the command and control relationship between the VRS Main Staff and 
Belgrade was that provided by Colonel Selak. He said, speaking of a Prosecution 
exhibit displaying a link, between the Main Staffs of the VRS and V] after 18 May 
1992 (Prosecution Exhibit 174): 

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[T]here was no real chain of command because officially the 
Commander of the army of the Republika Srpska was Colonel General 
Ratko Mladic 1 . So this [link] is just pro forma because other relations 
between the Chief of Staff, the main staff of the Yugoslav Army and the 
main staff of the army of the Republika Srpska were not really existing but, 
in fact, they did co-ordinate. 

Coordination is not the same as command and control. The only other evidence 
submitted by the Prosecution was that, in addition to routing all high-level VRS 
communications through secure links in Belgrade, a communications link for 
everyday use was established and maintained between VRS Main Staff 
Headquarters and the V] Main Staff in Belgrade. No further evidence was 
offered by the Prosecution on the nature of this relationship. 

599. What then of the second relationship, namely that between the SDS 
(and hence the Republika Srpska) and the Government of the Federal Republic of 
Yugoslavia (Serbia and Montenegro) ? Unlike the situation confronted by the 
Court in the Nicaragua case, where the United States had largely selected and 
installed the political leaders of the contras, in the Republika Srpska political 
leaders were popularly elected by the Bosnian Serb people of the Republic of 
Bosnia and Herzegovina. Indeed, as previously noted, the independence of the 
Republika Srpska itself was declared at a vote of the Assembly of the Serbian 
People of Bosnia and Herzegovina on 9 January 1992. The Assembly and its 
leaders played a role in the overall conduct of the war both in the Republic of 
Bosnia and Herzegovina and beyond, in addition to the supply of paramilitary 
forces to supplement the fighting strength of the new VRS units, which forces 
took part in the military operations in opStina Prijedor. . . . 

605. Thus, while it can be said that the Federal Republic of Yugoslavia 
(Serbia and Montenegro), through the dependence of the VRS on the supply of 
materiel by the V], had the capability to exercise great influence and perhaps 
even control over the VRS, there is no evidence on which this Trial Chamber 
can conclude that the Federal Republic of Yugoslavia (Serbia and Montenegro) 
and the V] ever directed or, for that matter, ever felt the need to attempt to 
direct, the actual military operations of the VRS, or to influence those operations 
beyond that which would have flowed naturally from the coordination of military 
objectives and activities by the VRS and VJ at the highest levels. In sum, while, 
as in the Nicaragua case, the evidence available to this Trial Chamber clearly 
shows that the "various forms of assistance provided" to the armed forces of the 
Republika Srpska by the Government of the Federal Republic of Yugoslavia 
(Serbia and Montenegro) was "crucial to the pursuit of their activities" and, as 
with the early years of the contras' activities, those forces were almost completely 
dependent on the supplies of the V] to carry out offensive operations, evidence 

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that the Federal Republic of Yugoslavia (Serbia and Montenegro) through the 
VJ "made use of the potential for control inherent in that dependence," or was 
otherwise given effective control over those forces and which it exercised, is 
similarly insufficient. 

On the basis of its assessment of the law as contained in the Nicaragua 
decision (the effective control test) and its assessment of the facts, the majority 
found that the VRS and the RS could not be regarded as de facto organs or 
agents of the FRY. As a consequence, the civilian victims in the Tadic case 
could not be regarded as protected persons within the meaning of the Geneva 
Civilians Convention, because they were not in the hands of a party, of which 
they were not nationals, to an armed conflict. The Bosnian victims were in the 
hands of their Bosnian (Serb) fellow nationals. As a consequence, the grave 
breach provisions of the Geneva Conventions recognized in Article 2 of the 
1CTY Statute did not apply. 27 

Judge McDonald, continuing to adopt the approach she had formulated in 
the Rajic Rule 61 Proceeding, filed a robust dissent in which she argued that the 
majority had misinterpreted the Nicaragua decision and in any event had 
misapplied its mistaken interpretation to the facts. In her view, Nicaragua 
established two distinct tests for attributatility: effective control and agency. 
She summarized her analysis as follows: 

25. The separate opinion of Judge Ago [in the Nicaragua case], also cited by 
the majority, explains with lucidity the concept that a State can be found legally 
responsible even where there is no finding of agency. He states: 

[T]he negative answer returned by the Court to the Applicant's suggestion 
that the misdeeds committed by some members of the contra forces should 
be considered as acts imputable to the United States of America is likewise 
in conformity with the provisions of the International Law Commission's 
draft. It would indeed be inconsistent with the principles governing the 
question to regard members of the contra forces as persons or groups acting 
in the name and on behalf of the United States of America. Only in cases 
where certain members of those forces happened to have been specifically 
charged by United States authorities to commit a particular act, or to carry 
out a particular task of some kind on behalf of the United States, would it 
be possible so to regard them. Only in such instances does international 
law recognize, as a rare exception to the rule, that the conduct of persons or 
groups which are neither agents nor organs of a State, nor members of its 
apparatus even in the broadest acceptation of that term, may be held to be acts of 
that State. The Judgment, accordingly, takes a correct view when, referring 
in particular to the atrocities, acts of violence or terrorism and other 

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inhuman actions that Nicaragua alleges to have been committed by the 
contras against the persons and property of civilian populations, it holds 
that the perpetrators of these misdeeds may not be considered as having 
been specifically charged by United States authorities to commit them 
unless, in certain concrete cases, unchallengeable proof to the contrary has 
been supplied. 28 

Therefore it appears that there are two bases on which the acts of the VRS could 
be attributed to the Federal Republic of Yugoslavia (Serbia and Montenegro) : 
where the VRS acted as an agent of the Federal Republic of Yugoslavia (Serbia 
and Montenegro), which could be established by a finding of dependency on the 
one side and control on the other; or where the VRS was specifically charged by 
the Federal Republic of Yugoslavia (Serbia and Montenegro) to carry out a 
particular act on behalf of the Federal Republic of Yugoslavia (Serbia and 
Montenegro) thereby making the act itself attributable to the Federal Republic 
of Yugoslavia (Serbia and Montenegro). In Nicaragua, the court required a 
showing of effective control for this latter determination. 

If "effective control" is the proper test, Judge McDonald, interpreting the 
same evidence and accepting the same facts, concluded that the FRY did 
effectively control the VRS, that the creation of the VRS was a legal fiction, and 
that the attack which provided the opportunity for Tadic to commit offenses 
had to have been planned before the VRS was created on 19 May 1992. 

7. The evidence proves that the creation of the VRS was a legal fiction. The 
only changes made after the 15 May 1992 Security Council resolution were the 
transfer of troops, the establishment of a Main Staff of the VRS, a change in the 
name of the military organisation and individual units, and a change in the 
insignia. There remained the same weapons, the same equipment, the same 
officers, the same commanders, largely the same troops, the same logistics 
centres, the same suppliers, the same infrastructure, the same source of 
payments, the same goals and mission, the same tactics, and the same operations. 
Importantly, the objective remained the same: to create an ethnically pure Serb 
State by uniting Serbs in Bosnia and Herzegovina and extending that State from 
the Federal Republic of Yugoslavia (Serbia and Montenegro) to the Croatian 
Krajina along the important logistics and supply line that went through opStina 
Prijedor, thereby necessitating the expulsion of the non-Serb population of the 
opStina. 

8. Although there is little evidence that the VRS was formally under the 
command of Belgrade after 19 May 1992, the VRS clearly continued to operate 
as an integrated and instrumental part of the Serbian war effort. This finding is 
supported by evidence that every VRS unit had been a unit in the JNA, the 

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command and staffs remaining virtually the same after the re-designation. The 
VRS Main Staff, the members of which had all been generals in the JNA and 
many of whom were appointed to their positions by the JNA General Staff, 
maintained direct communications with the VJ General Staff via a 
communications link from Belgrade. . . . The ties between the military in Bosnia 
and Herzegovina and the SDS political party, which advocated a Greater Serbia, 
similarly remained unchanged after the re-designation. 

9. In addition, the evidence establishes that the VRS, in continuing the JNA 
operation to take over opstina Prijedor, executed the military operation for the 
benefit of the Federal of Yugoslavia (Serbia and Montenegro) . 

The prosecution has appealed the Trial Chamber decision in Tadic, arguing: 

• The Trial Chamber erred in relying upon the Nicaragua case and the 
"effective control" test to determine the applicability of the grave breach 
provisions of the Geneva Conventions. 

• The provisions of the Geneva Conventions and the relevant principles 
and authorities of international humanitarian law only require that the 
perpetrator be demonstrably linked to a party to an international armed 
conflict of which the victim is not a national, for the grave breach provisions to 
be rendered applicable. 

• Assuming the Nicaragua case is to be relied upon, the decision in the 
Nicaragua case also applied an "agency" test, which is a more appropriate 
standard for determining the applicability of the grave breach provisions. 

• In any event, assuming that the "effective control" test mentioned in the 
Nicaragua case is applicable to determining the applicability of grave breach 
provisions, the Trial Chamber erred in finding that this test is not satisfied on 
the facts of this case, which also satisfy the "agency" test outlined in the 
Nicaragua case. 29 

The main argument advanced by the prosecution is that the Nicaragua case 
is not relevant to the determination of the applicablity of the grave breach 
provisions or to determining individual criminal responsibility. It is essential to 
establish the existence of an international armed conflict in Bosnia at the time 
when Tadic is alleged to have committed his crimes. It is then necessary to 
establish that the perpetrator (Tadic) has a demonstrable link to one party to 
the international armed conflict while the victim is linked to a neutral or to a 
party on the other side. Further, as an aside, although Article 4 of the Civilians 
Convention defines "protected persons" as persons in the hands of a party of 

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which they are not nationals, determination of nationality is not a simple 
process when States are in the process of decomposition. A simplistic 
assumption that persons must be nationals of a new State simply because they 
live in its territory at the moment of creation is inappropriate. 30 

Violations of the Laws or Customs of War 

Article 3 of the ICTY Statute gives the Tribunal power to prosecute persons 
violating the laws or customs of war. Certain violations are enumerated in the 
article, but the list is open-ended. In the Tadic Jurisdiction Decision, the Appeals 
Chamber considered the meaning of the expression "violation of the laws or 
customs of war" in the ICTY Statute. Its assessment may have an impact 
outside the Tribunal. The defense argued that Article 3 applied exclusively to 
international conflicts. 31 The prosecution argued that the expression "laws or 
customs of war" was at one time viewed as a term of art referring to laws or 
customs applicable exclusively to declared wars. As declared wars became 
uncommon, the expression was viewed as a term of art applicable to all 
international armed conflicts. In the opinion of the prosecution, with the 
development of treaty law specifically intended to apply to non-international 
armed conflicts, and of customary law applicable to non-international armed 
conflicts, the expression "laws or customs of war" had become a term of art 
which applies to all armed conflicts, although it does not bear the same content 
in international and non-international conflicts. The prosecution also argued 
that Article 3 enabled the Tribunal to prosecute all violations of applicable 
international humanitarian law treaties. Specifically, with reference to the 
Tadic case, the prosecution argued that the ICTY had the power to prosecute 
for violations of the rules in Common Article 3 oi the Geneva Conventions 
committed in international or internal conflicts. 32 

Although the Appeals Chamber utilized a relatively conservative approach 
with respect to Article 2, it adopted an extremely progressive and creative 
approach concerning Article 3 of the Statute. The Chamber adopted the 
approach favored by the prosecution and went on at some length to elaborate 
upon its implications and upon the content oi the relevant customary law, 
particularly that part of customary law which, in its view, applies to all armed 
conflicts regardless of classification. It is reasonable to assume that the 
Chamber focused its analysis on this part of customary law, both because it 
shared the view it apparently assigned to the Security Council that the conflicts 
in the territory of the former Yugoslavia are many and of mixed character, and 
because the content of this part of customary law had not been reviewed by a 

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tribunal in the past. In paragraph 94 of the Jurisdiction Decision, the Appeals 
Chamber set forth the requirements for an offense to be subject to prosecution 
under Article 3 of the Statute: 

• The violation must constitute an infringement of a rule of international 
humanitarian law. 

• The rule must be customary in nature, or if it belongs to treaty law, the 
required conditions must be met. 

• The violations must be "serious," that is to say, it must constitute a breach 
of a rule protecting important values, and the breach must involve grave 
consequences for the victim. Thus, for instance, the fact of a combatant simply 
appropriating a loaf of bread in an occupied village would not amount to a 
"serious violation of international humanitarian law," although it may be 
regarded as falling afoul of the basic principle laid down in Article 46, 
paragraph 1, of the Hague Regulations (and the corresponding rule of 
customary international law) whereby "private property must be respected" by 
any army occupying an enemy territory. 

• The violation oi the rule must entail, under customary or conventional 
law, the individual criminal responsibility of the person breaching the rule. 

It follows that it does not matter whether the "serious violation" has occurred 
within the context of an international or an internal armed conflict, as long as 
the requirements set out above are met. 

The Chamber regarded Article 3 of the Statute as a general or residual 
clause covering all violations of humanitarian law not falling within Articles 2, 
4, or 5. In so doing, it did not avoid or evade the classification issue. 
Classification remains relevant (a) when the sole source of a rule is a treaty 
which applies to a specific type of conflict (Protocol I, the Geneva Conventions 
and the Hague Conventions apply to international conflicts. Protocol II applies 
to internal conflicts.), or (b), when the customary law applies to a specific type 
of conflict. 

Concerning treaty provisions, other than the grave breach provisions of the 
Geneva Conventions, the Chamber indicated it has jurisdiction to punish 
under Section 3 of the Statute: 

143. Before both the Trial Chamber and the Appeals Chamber, Defence and 
Prosecution have argued the application of certain agreements entered into by 
the conflicting parties. It is therefore fitting for this Chamber to pronounce on 
this. It should be emphasised again that the only reason behind the stated 
purpose of the drafters that the International Tribunal should apply customary 

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international law was to avoid violating the principle of nullum crimen sine lege in 
the event that a party to the conflict did not adhere to a specific treaty. (Report 
of the Secretary- General, at para. 34) . It follows that the International Tribunal 
is authorised to apply, in addition to customary international law, any treaty 
which: (i) was unquestionably binding on the parties at the time of the alleged 
offence; and (ii) was not in conflict with or derogated from peremptory norms of 
international law, as are most customary rules of international humanitarian law. 

Although the Chamber has adopted a very progressive approach concerning 
the content of customary law applicable to internal conflict, it did not state 
that customary law is identical for all conflicts. In particular, it held: 

126. The emergence of the aforementioned general rules on internal 
conflicts does not imply that internal strife is regulated by general international 
law in all its aspects. Two particular limitations may be noted: (i) only a number 
of rules and principles governing international armed conflicts have gradually 
been extended to apply to internal conflicts; and (ii) this extension has not taken 
place in the form of a full and mechanical transplant of those rules to internal 
conflicts; rather the general essence of those rules and not the detailed 
regulation they may contain has become applicable to internal conflicts. 

The decision therefore, envisages charges under Article 3 of the Statute: (a) 
where an armed conflict must be established but classification is irrelevant 
because the basis for the charge is a rule of customary law which applies to all 
armed conflicts; (b) where an armed conflict must be established and classified 
as international because the basis for the charge is a rule of treaty or customary 
law which applies exclusively to international conflicts; or (c) where an armed 
conflict must be established and classified as internal because the basis for the 
charge is a rule of treaty or customary law which applies exclusively to internal 
conflicts. 

As a general statement, evidenced by practice before the International 
Court of Justice, proof that a rule is a part of customary law is an extremely 
difficult task. 33 The Appeals Chamber has, however, provided a relatively 
elaborate discussion of the current content of customary law. In particular, it 
has indicated that the following rules apply to all conflicts regardless of 
classification: 

• The rules in Common Article 3 (para 102); 

• The principles in UN General Assembly Resolution 2444 (paras. 110 and 
112); and 

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• The principles in UN General Assembly Resolution 2675 (paras. Ill and 
112). 

In addition to elaborating upon the content of customary law applicable to 
all conflicts and also to internal conflicts, the Chamber countered a defense 
assertion that the law applicable to internal armed conflicts did not entail 
individual criminal responsibility. Indeed, neither Additional Protocol II nor 
Common Article 3 contain provisions referring to criminal liability, although 
each of the Geneva Conventions does contain a relevant provision that states 
in part: "Each High Contracting Party shall take measures necessary for the 
suppression of all acts contrary to the provisions o( the present Convention 
other than the grave breaches." 34 The Tribunal addressed the issue as follows: 

128. .. . Faced with similar claims with respect to the various agreements and 
conventions that formed the basis of its jurisdiction, the International Military 
Tribunal at Nuremberg concluded that a finding of individual criminal 
responsibility is not barred by the absence of treaty provisions on punishment of 
breaches. (See THE TRIAL OF MAJOR WAR CRIMINALS: PROCEEDINGS OF THE 
INTERNATIONAL MILITARY TRIBUNAL SITTING AT NUREMBERG GERMANY, 
Part 22, at 445, 467 (1950)). The Nuremberg Tribunal considered a number of 
factors relevant to its conclusion that the authors of particular prohibitions incur 
individual responsibility: the clear and unequivocal recognition of the rules of 
warfare in international law and State practice indicating an intention to 
criminalize the prohibition, including statements by governments officials and 
international organizations, as well as punishment of violations by national 
courts and military tribunals (id., at 445-47, 467). Where these conditions are 
met, individuals must be held criminally responsible, because, as the Nuremberg 
Tribunal concluded: 

"(c]rimes against international law are committed by men, not by abstract 
entities, and only by punishing individuals who commit such crimes can 
the provisions of international law be enforced." (Id., at 447). 

129. Applying the foregoing criteria to the violations at issue here, we have 
no doubt that they entail individual criminal responsibility, regardless of whether 
they are committed in internal or international armed conflicts. Principles and 
rules of humanitarian law reflect "elementary considerations of humanity" 
widely recognized as the mandatory minimum for conduct in armed conflicts of 
any kind. No one can doubt the gravity of the acts at issue, nor the interest of the 
international community in their prohibition. 

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130. Furthermore, many elements of international practice show that States 
intend to criminalize serious breaches of customary rules and principles on 
internal conflict. 

The Chamber's interpretation of the scope of customary law embraced by 
the expression "violations of the laws or customs of war" is indeed quite 
progressive. Reputable authorities have been of the view that no customary law 
exists for internal conflict 35 and that there is no basis for an assignment of 
criminal responsibility for acts occurring in internal conflicts except by a 
domestic court in the State where the conflict occurred. 36 Further, the basis for 
the conclusion that a body of customary law applicable to all conflicts exists 
might also be subjected to criticism. Extracts from the oral argument of the 
United States in the Nuclear Weapons Advisory Opinion case highlight the 
distinction between the approach of the Tribunal and the more traditional 
approach: 

It is a fundamental principle of international law that restrictions on 
States — particularly those affecting the conduct of armed conflict — cannot be 
presumed; they must, rather, be found in conventional law specifically accepted 
by States, or in customary law generally accepted as such by the community of 
nations. The Court made this vital point in the case of Nicaragua v. United States 
(l.CJ. Reports 1986, p.135), recalling that 

in international law there are no rules, other than such rules as may be 
accepted by the State concerned, by treaty or otherwise, whereby the level 
of armaments of a sovereign State can be limited. 

An even higher standard applies in establishing the existence of 
peremptory norms of international law, which must be accepted and 
recognized by the international community as norms from which no 
derogation is permitted. . . . J7 

As the Court has clearly established, customary international law is created by a 
general and consistent practice of States, followed out of a sense of legal 
obligation. The Court has noted in the North Sea Continental Shelf case that the 
incorporation of a norm into customary international law requires "extensive 
and virtually uniform" State practice. 38 

As a matter of law, the General Assembly's resolutions could only be 
declarative of principles of customary international law to the extent that such 
principles have in fact, been recognized already by the international 



1Q 

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When contrasted with the rigorous approach adopted by the International 
Court of Justice and other tribunals towards proof of customary law in other 
areas of international law, the substantiation provided by the Appeals 
Chamber for its conclusions concerning customary law is limited. The support 
for the conclusion that a certain common body of customary law applied to 
both international and internal conflicts consists primarily of two UN General 
Assembly Resolutions, 2444 oi 19 December 1968 and 2675 of 9 December 
1970, and a quotation from the Nicaragua decision. 40 Support for the 
conclusion that there is a significant body of customary law applicable to 
internal conflicts is more firmly based, consisting of examples from the Spanish 
Civil War of 1936-1939 (para. 100), the Chinese civil war that ended in 1949 
(para. 102), the Nicaragua contra struggles of the 1980s (para. 103), the 1967 
conflict in Yemen (para. 105), the Congo civil war of the 1960s (para. 106), the 
1980s conflict in El Salvador (para. 107), and various declarations by States 
and international organizations urging States involved in internal conflicts to 
comply with certain minimum standards. 

It must, however, be conceded that tribunals which have addressed the issue 
of the customary law content of international humanitarian law have tended to 
avoid detailed proofs. The International Military Tribunal at Nuremberg, 41 the 
tribunal which decided the High Command Case, 42 and even the IC] itself in the 
Nicaragua Case 43 have all tended to reach essentially unsubstantiated 
conclusions on these matters. In the words of Theodor Meron: 

Only a few international judicial decisions discuss the customary law nature of 
international humanitarian law instruments. These decisions nevertheless point 
to certain trends in this area, including a tendency to ignore, for the most part, 
the availability of evidence of state practice (scant as it may have been) and to 
assume that noble humanitarian principles that deserve recognition as the 
positive law of the international community have in fact been recognized as such 
by states. The "ought" merges with the "is," the lex ferenda with the lex lata. The 
teleological desire to solidify the humanizing content of the humanitarian norms 
clearly affects the judicial attitudes underlying the "legislative" character of the 
judicial process. Given the scarcity of actual practice, it may well be that, in 
reality, tribunals have been guided, and are likely to continue to be guided, by the 
degree of offensiveness of certain acts to human dignity; the more heinous the 
act, the more the tribunal will assume that it violates not only a moral principle of 
humanity but also a positive norm of customary law. 44 

Indeed, the Appeals Chamber, in the Jurisdiction Decision, has provided the 
most sophisticated and rigorous judicial determination to date of the 
customary law aspects of international humanitarian law. One might hope, 

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however, that the ICTY will return to some of these issues in future to 
strengthen their legal foundations. 

Crimes against Humanity 

In contrast to both the relatively conservative approach taken concerning 
Article 2 of the Statute and the somewhat progressive approach taken 
concerning Article 3, in the Tadic Jurisdiction Decision the Appeals Chamber 
adopted a relatively middle-of-the-road approach concerning the 
interpretation of Article 5 with respect to crimes against humanity. The 
approach taken in the Charter of the International Military Tribunal at 
Nuremberg 45 and in the judgment of the International Military Tribunal 
(IMT) 46 was to link crimes against humanity to other offenses within the 
jurisdiction of the IMT and, in particular, to link crimes against humanity to the 
existence of an international armed conflict. On the other hand, Control 
Council Law No. 10, 47 which provided the basis for several subsequent trials at 
Nuremberg by American tribunals, defined crimes against humanity but did 
not restrict the jurisdiction of tribunals empowered under it to offenses 
committed "in execution of or in connection with any crime within the 
jurisdiction of the Tribunal." 48 As a result, the tribunals in some of the 
subsequent proceedings regarded crimes against humanity as offenses which 
need not have a link with international armed conflict. 49 

Article 5 of the ICTY Statute gave the Tribunal the power to prosecute 
persons committing crimes against humanity "when committed in armed 
conflict." The defense argued that insofar as Article 5 purported to regulate 
conduct in internal conflict it offended against the nullum crimen principle, 
because in customary law crimes against humanity require a nexus with 
international armed conflict. 50 The prosecution responded that under existing 
customary law, crimes against humanity did not require a nexus with any form 
of armed conflict and that as a result, since Article 5 adopted an approach that 
was more restrictive than customary law, it did not breach the nullum crimen 
principle. 51 The Tribunal decided (para. 141), "It is by now a settled rule of 
customary international law that crimes against humanity do not require a 
connection to international armed conflict." It went on to indicate the 
prosecution argument may well have been correct, and in any event Article 5 
was in compliance with the nullum crimen principle. 

The Trial Chamber in the Tadic Trial Decision devoted substantial space to 
consideration of crimes against humanity. Article 5 of the ICTY Statute gives 
the Tribunal the power to prosecute persons responsible for crimes against 

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humanity "when committed in armed conflict" and "directed against any 
civilian population." The Trial Chamber accepted the test set out by the 
Appeals Chamber in the Tadic ]urisdiction Decision for the existence of an 
armed conflict: " [A] n armed conflict exists whenever there is a resort to armed 
force between States or protracted armed violence between governmental 
authorities and organized armed groups or between such groups within a 
State." Finding the existence of an armed conflict (para. 628), it then 
considered the nexus between the act or omission and the armed conflict. The 
prosecution position — that the nexus was that the act must occur during the 
course of an armed conflict — was accepted, but the Chamber added two 
caveats: the act must be linked geographically as well as temporally with the 
armed conflict, and the act must not be unrelated to the armed conflict, i.e., it 
must not be done for purely personal motives of the perpetrator (paras. 633, 
634). Concerning "directed against any civilian population," the Chamber held 
that "any" made it clear that crimes against humanity could also be committed 
against stateless persons or civilians of the same nationality as the perpetrator 
(para. 635). Further, "civilian" would clearly exclude combatants, but it would 
otherwise be given a very broad definition, including, for example, hospital 
patients and resistance fighters who had laid down their arms (paras. 639-43). 
The requirement that crimes against humanity be directed against a civilian 
"population" was construed as requiring not that the entire population of a 
State or territory be victimized, but that such crimes be of a collective nature, 
not single or isolated acts (para. 644). The prosecution argued that the term 
"population" in Article 5 implied that the accused must participate in a 
widespread or systematic attack against a relatively large victim group. The 
defense position was that violations must be both widespread and systematic. 
The Chamber accepted the prosecution approach: 

648. It is therefore the desire to exclude isolated or random acts from the 
notion of crimes against humanity that led to the inclusion of the requirement 
that the acts must be directed against a civilian "population," and either a finding 
of widespreadness, which refers to the number of victims, or systematicity, 
indicating that a pattern or methodical plan is evident, fulfils this requirement. 

The Chamber went on to consider whether or not single acts could 
constitute crimes against humanity: 

649. A related issue is whether a single act by a perpetrator can constitute a 
crime against humanity. A tangential issue, not at issue before this Trial 
Chamber, is whether a single act in and of itself can constitute a crime against 

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humanity. This issue has been the subject of intense debate, with the 
jurisprudence immediately following the Second World War being mixed. The 
American tribunals generally supported the proposition that a massive nature 
was required, while the tribunals in the British Zone came to the opposite 
conclusion, finding that the mass element was not essential to the definition, in 
respect of either the number of acts or the number of victims and that "what 
counted was not the mass aspect, but the link between the act and the cruel and 
barbarous political system, specifically, the Nazi regime." Clearly, a single act by a 
perpetrator taken within the context of a widespread or systematic attack against 
a civilian population entails individual criminal responsibility and an individual 
perpetrator need not commit numerous offences to be held liable. Although it is 
correct that isolated, random acts should not be included in the definition of 
crimes against humanity, that is the purpose of requiring that the acts be directed 
against a civilian population and thus "[e]ven an isolated act can constitute a 
crime against humanity if it is the product of a political system based on terror or 
persecution." 

Although the Statute did not address the issue, the Chamber turned next to 
the issue of whether a discriminatory intent was a requirement for all crimes 
against humanity and not only for persecution under Article 5(h). No such 
requirement was contained in the Nuremberg Charter, Control Council Law 
No. 10, or the Tokyo Charter. Nevertheless, the Chamber imposed such a 
requirement in its interpretation of the Statute. 

652. Additionally this requirement is not contained in the Article on crimes 
against humanity in the I.L.C. Draft Code nor does the Defence challenge its 
exclusion in the Prosecution's definition of the offence. Significantly, 
discriminatory intent as an additional requirement for all crimes against 
humanity was not included in the Statute of this International Tribunal as it was 
in the Statute for the International Tribunal for Rwanda, the latter of which has, 
on this point, recently been criticised. Nevertheless, because the requirement of 
discriminatory intent on national, political, ethnic, racial or religious grounds for 
all crimes against humanity was included in the Report of the Secretary -General, 
and since several Security Council members stated that they interpreted Article 
5 as referring to acts taken on a discriminatory basis, the Trial Chamber adopts 
the requirement of discriminatory intent for all crimes against humanity under 
Article 5. 

The Chamber then addressed what has been referred to as the "policy 
element." Crimes against humanity involve a deliberate policy made by an 
entity to target a civilian population. 

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653. . . . Traditionally this requirement was understood to mean that there must 
be some form of policy to commit these acts. As explained by the Netherlands 
Hoge Raad in Public Prosecutor v. Menten: 

The concept of "crimes against humanity" also requires — although this is 
not expressed in so many words in the above definition [Article 6(c) of the 
Niirnberg Charter) — that the crimes in question form a part of a system 
based on terror or constitute a link in a consciously pursued policy directed 
against particular groups of people. 

Importantly, however, such a policy need not be formalized and can be deduced 
from the way in which the acts occur. Notably, if the acts occur on a widespread 
or systematic basis that demonstrates a policy to commit those acts, whether 
formalized or not. 

Further, it decided that the policy could be determined by non-State actors as 
well as by States. 

654. An additional issue concerns the nature of the entity behind the policy. 
The traditional conception was, in fact, not only that a policy must be present 
but that the policy must be that of a State, as was the case in Nazi Germany. The 
prevailing opinion was, as explained by one commentator, that crimes against 
humanity, as crimes of a collective nature, require a State policy "because their 
commission requires the use of the state's institutions, personnel and resources in 
order to commit, or refrain from preventing the commission of, the specified 
crimes described in Article 6(c) [of the Niirnberg Charter)." While this may 
have been the case during the Second World War, and thus the jurisprudence 
followed by courts adjudicating charges of crimes against humanity based on 
events alleged to have occurred during this period, this is no longer the case. As 
the first international tribunal to consider charges of crimes against humanity 
alleged to have occurred after the Second World War, the International 
Tribunal is not bound by past doctrine but must apply customary international 
law as it stood at the time o( the offences. In this regard the law in relation to 
crimes against humanity has developed to take into account forces which, 
although not those of the legitimate government, have de facto control over, or 
are able to move freely within, defined territory. The Prosecution in its pre-trial 
brief argues that under international law crimes against humanity can be 
committed on behalf of entities exercising de facto control over a particular 
territory but without international recognition or formal status of a de jure State, 
or by a terrorist group or organization. The Defence does not challenge this 
assertion, which conforms with recent statements regarding crimes against 
humanity. 

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Finally, the Chamber considered the intent necessary for crimes against 
humanity and concluded: 

659. Thus if the perpetrator has knowledge, either actual or constructive, 
that these acts were occurring on a widespread or systematic basis and does not 
commit his act for purely personal motives completely unrelated to the attack on 
the civilian population, that is sufficient to hold him liable for crimes against 
humanity. Therefore the perpetrator must know that there is an attack on the 
civilian population, know that his act fits in with the attack and the act must not 
be taken for purely personal reasons unrelated to the armed conflict. 

The prosecution is at present appealing two of the findings of the Trial 
Chamber on the law applicable to the 1CTY related to crimes against humanity. 
With reference to the finding that crimes against humanity cannot be 
committed for purely personal motives, the prosecution argues that the motive 
for committing crimes against humanity is irrelevant. 52 With reference to the 
finding that all crimes against humanity require a discriminatory intent, the 
prosecution argues that the 1CTY Statute includes no such requirement, that 
customary law does not require a discriminatory intent for all crimes against 
humanity, and that Article 5 of the ICTY Statute is intended to reflect 
customary law. 53 

Individual Criminal Responsibility 

Article 7 of the ICTY Statute addresses individual criminal responsibility. 
Article 7(1) o( the Statute provides, in part: "A person who planned, 
instigated, ordered, committed or otherwise aided and abetted in the planning, 
preparation or execution of a crime . . . shall be individually responsible for the 
crime." 

Forms of Criminal Participation. The Tadic Trial Decision provides the first 
extended judicial consideration of this provision. It states: 

692. In sum, the accused will be found criminally culpable for any conduct 
where it is determined that he knowingly participated in the commission of an 
offence that violates international humanitarian law and his participation 
directly and substantially affected the commission of that offence through 
supporting the actual commission before, during, or after the incident. He will 
also be responsible for all that naturally results from the commission of the act in 
question. 

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The Chamber elaborated on the meaning of "substantially": 

688. . . . While there is no definition of "substantially," it is clear from the 
aforementioned cases that the substantial contribution requirement calls for a 
contribution that in fact has an effect on the commission of the crime. This is 
supported by the foregoing Niirnberg cases where, in virtually every situation, 
the criminal act most probably would not have occurred in the same way had not 
someone acted in the role that the accused in fact assumed. For example, if there 
had been no poison gas or gas chambers in the Zyklon B cases, mass 
exterminations would not have been carried out in the same manner. The same 
analysis applies to the cases where the men were prosecuted for providing lists of 
names to German authorities. Even in these cases, where the act in complicity 
was significantly removed from the ultimate illegal result, it was clear that the 
actions of the accused had a substantial and direct effect on the commission of 
the illegal act, and that they generally had knowledge of the likely effect of their 
actions. 

It defined "aiding and abetting" as follows: 

689. The Trial Chamber finds that aiding and abetting includes all acts of 
assistance by words or acts that lend encouragement or support, as long as the 
requisite intent is present. Under this theory, presence alone is not sufficient if it 
is an ignorant or unwilling presence. However, if the presence can be shown or 
inferred, by circumstantial or other evidence, to be knowing and to have a direct 
and substantial effect on the commission of the illegal act, then it is sufficient on 
which to base a finding of participation and assign the criminal culpability that 
accompanies it. 

The Chamber also discussed the significance of physical presence during the 
commission of an offense: 

690. Moreover, when an accused is present and participates in the beating of 
one person and remains with the group when it moves on to beat another person, 
his presence would have an encouraging effect, even if he does not physically 
take part in this second beating, and he should be viewed as participating in this 
second beating as well. This is assuming that the accused has not actively 
withdrawn from the group or spoken out against the conduct of the group. 

691. However, actual physical presence when the crime is committed is not 
necessary; just as with the defendants who only drove victims to the woods to be 
killed, an accused can be considered to have participated in the commission of a 
crime based on the precedent of the Niirnberg war crimes trials if he is found to 

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be "concerned with the killing." However, the acts of the accused must be direct 
and substantial. 

Command Responsibility, Article 7(3) addresses command responsibility: 

The fact that any of the acts referred to in articles 2 to 5 of the present Statute 
was committed by a subordinate does not relieve his superior of criminal 
responsibility if he knew or had reason to know that the subordinate was about to 
commit such acts or had done so and the superior failed to take the necessary and 
reasonable measures to prevent such acts or to punish the perpetrators thereof. 

The scope of Article 7(3) has been addressed in two preliminary motions 
decided in the Blaskic case, one concerning the mens rea required for charges 
alleging command responsibility, and the other concerning whether or not the 
failure to punish provision in Article 7(3) offended the nullum crimen principle. 
In the mens rea motion, the defense argued that the "knew or had reason to 
know" standard should be defined as: "(1) actual knowledge; or (2) wanton 
disregard of objective facts within the accused's actual possession compelling 
the conclusion that the accused's subordinates where about to commit or had 
committed the criminal acts alleged in the indictment." 54 

In response, the prosecution argued that a decision on mens rea at the 
pre-trial stage was premature, as the issue was too abstract in the absence of 
evidence to be considered at trial. If the issue was appropriate for consideration 
before the trial, the prosecution argued that a proper statement of the mens rea 
standard was: 

• Actual knowledge proved by direct evidence, or 

• Actual knowledge proved by circumstantial evidence, the "must have 
known" standard. The prosecution argued that the Tribunal should not 
reject the "must have known" mens rea standard because, although it may be 
conceptually similar to actual knowledge established by means o( direct 
evidence, the evidentiary implications o{ knowledge inferred from 
circumstantial evidence are significantly different. In particular, where the 
crimes of subordinates are a matter of public notoriety, are numerous, or 
occur over a prolonged period or in a wide geographical area, there is a 
presumption that the commander had the requisite knowledge in the absence 
o( evidence to the contrary, or 

• Wanton disregard not only of facts within his actual possession but also of 
facts that are not within his actual possession by reason of a failure on his part 
to supervise properly his subordinates and in particular to require and obtain 

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adequate reports or information and to be apprised of the actions of his 
subordinates. The appropriate mens rea standard under international law is 
wanton disregard of information of a general nature within the reasonable 
access of a commander indicating the likelihood of actual or prospective 
criminal conduct on the part of his subordinates. 55 

The Trial Chamber rejected consideration of the substantive issues related to 
mens rea as premature but granted the accused permission to raise the issues 
again at trial. 56 

Concerning the defense motion alleging that the provision related to failure 
to punish liability offended the nullum crimen principle, the Chamber found 
"that the case law and the international conventions which enshrine the 
principle of the command responsibility of whoever fails to punish subordinates 
who have committed crimes are fully adequate." 57 

10. As regards international case-law, in the Tokyo trials, the Prime Minister 
of Japan, HidekiTojo, was found guilty by the International Military Tribunal for 
the Far East on the following grounds: 

(He) took no adequate steps to punish offenders (who ill-treated 
prisoners and internees) and to prevent the commission of similar offences 
in the future. (. . .) He did not call for a report on the [Bataan death 
march). When in the Philippines in 1943 he made perfunctory inquiries 
about the march but took no action. No one was punished. (. . .) Thus the 
head of the Government of Japan knowingly and wilfully refused to 
perform the duty which lay upon that Government of enforcing 
performance of the laws of war." [20 Tokyo Trials, 49845-49846]. 

Although in its motion the Defence pleads that he "was found criminally 
responsible for both failure to prevent the recurrence of crimes and failure to 
punish; proof of both elements was required for criminal liability to attach" (p. 
21), the reasoning underlying that decision in no way justifies this argument. The 
decision clearly held Tojo responsible for having failed to punish his subordinates 
and thus emphasised that "No one was punished." That statement is based on 
the following reasoning: failing to punish subordinates inevitably means failing to 
prevent the recurrence of crimes, whereas by punishing subordinates, such 
recurrence is naturally prevented, with the result that failure to punish alone is 
sufficient grounds for command responsibility. 

The Chamber also found support for its view in the Hostage Case (para. 11). 
As to treaty law basis for failure to punish liability, the chamber stated: 

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12. In respect of conventional law, it should be noted that the existence of 
such a principle of responsibility is also specified in the provisions of Protocol I. A 
review of the official record of the Geneva diplomatic conference which adopted 
the Protocol shows that Articles 86 and 87 were adopted by consensus by the 
delegations of more than 90 States present at the 45th plenary meeting. . . . 

Thus Protocol I imposes, in Article 86(2), penal or disciplinary responsibility 
on the part of superiors who did not take all practicable measures within their 
competence "to prevent or repress the offence" committed by their subordinates. 
As sanctioning the perpetrator of the crime is the effective means of repressing 
the offense, the Protocol further considers that an omission to punish constitutes 
a failure to comply with an obligation which engages command responsibility. 
And as Article 87(3) provides that the High Contracting Parties and the Parties 
to the conflict must demand of any commander that he implement the penal and 
disciplinary measures against the perpetrators of violations, it demonstrates even 
more clearly and specifically that, according to the Protocol, any failure to punish 
an offense is grounds for command responsibility. 

Potential Defenses 

Duress. Article 7(4) of the ICTY Statute addresses the issue of superior orders: 
"The fact than an accused person acted pursuant to an order of a Government 
or of a superior shall not relieve him of criminal responsibility, but may be 
considered in mitigation of punishment if the International Tribunal 
determines that justice so requires." Although the statutory provision ensures 
that superior orders, of themselves, will not constitute a defense, in most cases 
the issue of superior orders will be linked with duress, and neither the Statute 
nor the older case law adequately addresses duress as a potential defense. This 
poses a significant problem, because in general, duress may constitute a 
complete defense to all criminal charges in civil law systems, but it is not a 
defense to murder-type charges in common law systems. In the Erdemovic Case, 
Drazen Erdemovic, a Bosnian Croat who was a member of a Bosnian Serb 
killing squad at Srebrenica which killed approximately 1,200 unarmed civilians 
and who personally killed between ten and a hundred persons, submitted a 
guilty plea to a crime against humanity charge. With his guilty plea, however, 
he also stated: 

Your Honour, I had to do this. If I had refused, I would have been killed together 
with the victims. When I refused, they told me: "If you're sorry for them, stand 
up, line up with them and we will kill you too." I am not sorry for myself but for 

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my family, my wife and son who then had nine months, and I could not refuse 
because then they would have killed me. 58 

The Trial Chamber, composed entirely of judges from civil law 
systems — Jorda (France), Odio Benito (Costa Rica), and Riad (Egypt) — 
accepted the guilty plea after devoting substantial heed to its validity in the 
judgment. Although the Chamber did not consider that a duress defense had 
been established in the case of Erdemovic, it also indicated that in certain 
carefully circumscribed circumstances duress could constitute a complete 
defense to a crime against humanity charge (paras. 13-21). 

Erdemovic appealed his sentence, and the duress issue was considered by 
the Appeals Chamber. The Appeals Chamber issued four separate opinions 
addressing duress and by a majority of three to two found that "duress does not 
afford a complete defence to a soldier charged with a crime against humanity 
and/or a war crime involving the killing of innocent human beings." 59 Judge 
McDonald (USA) and Judge Vohrah (Malaysia) in a joint separate opinion, 
and Judge Li (China) in a separate and dissenting opinion held that duress was 
not a complete defense. Judge Cassese (Italy) and Judge Stephen (Australia) 
submitted separate dissenting opinions indicating that duress could constitute 
a complete defense in cases involving the killing of innocent persons, in limited 
circumstances. 

Judge McDonald and Judge Vohrah found that no customary international 
law rule could be derived on the question of duress as a defense to the killing of 
innocent persons (paras. 46-55). They then reviewed a large, but not 
exhaustive, number of national systems in an attempt to determine whether 
there was an applicable general principle of law recognized by civilized nations. 

They concluded: "66 it is, in our view, a general principle of law recognized 

by civilized nations that an accused person is less blameworthy and less 
deserving of the full punishment when he performs a certain prohibited act 
under duress." On the other hand, "67. The rules of the various legal systems of 
the world are, however, largely inconsistent regarding the specific question 
whether duress affords a complete defence to a combatant charged with a war 
crime or a crime against humanity involving the killing of innocent persons." 
The two judges then went on to deny duress as a complete defense, on policy 
grounds. 

75. The resounding point from these eloquent passages is that the law should 
not be the product or slave of logic or intellectual hair-splitting, but must serve 
broader normative purposes in light of its social, political and economic role. It is 
noteworthy that the authorities we have just cited issued their cautionary words 

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in respect of domestic society and in respect of a range of ordinary crimes 
including kidnapping, assault, robbery and murder. Whilst reserving our 
comments on the appropriate rule for domestic national contexts, we cannot but 
stress that we are not, in the International Tribunal, concerned with ordinary 
domestic crimes. The purview of the International Tribunal relates to war crimes 
and crimes against humanity committed in armed conflicts of extreme violence 
with egregious dimensions. We are not concerned with the actions of domestic 
terrorists, gang- leaders and kidnappers. We are concerned that, in relation to the 
most heinous crimes known to humankind, the principles of law to which we give 
credence have the appropriate normative effect upon soldiers bearing weapons of 
destruction and upon the commanders who control them in armed conflict 
situations. The facts of this particular case, for example, involved the 
cold-blooded slaughter of 1,200 men and boys by soldiers using automatic 
weapons. We must bear in mind that we are operating in the realm of 
international humanitarian law which has, as one of its prime objectives, the 
protection of the weak and vulnerable in such a situation where their lives and 
security are endangered. Concerns about the harm which could arise from 
admitting duress as a defence to murder were sufficient to persuade a majority of 
the House of Lords and the Privy Council to categorically deny the defence in 
the national context to prevent the growth of domestic crime and the impunity 
of miscreants. Are they now insufficient to persuade us to similarly reject duress 
as a complete defence in our application of laws designed to take account of 
humanitarian concerns in the arena of brutal war, to punish perpetrators of 
crimes against humanity and war crimes, and to deter the commission of such 
crimes in the future? If national law denies recognition of duress as a defence in 
respect of the killing of innocent persons, international criminal law can do no 
less than match that policy since it deals with murders often of far greater 
magnitude. If national law denies duress as a defence even in a case in which a 
single innocent life is extinguished due to action under duress, international law, 
in our view, cannot admit duress in cases which involve the slaughter of innocent 
human beings on a large scale. It must be our concern to facilitate the 
development and effectiveness of international humanitarian law and to 
promote its aims and application by recognising the normative effect which 
criminal law should have upon those subject to them. Indeed, Security Council 
Resolution 827 (1993) establishes the International Tribunal expressly as a 
measure to "halt and effectively redress" the widespread and flagrant violations 
of international humanitarian law occurring in the territory of the former 
Yugoslavia and to contribute thereby to the restoration and maintenance of 
peace. 

They considered, but rejected, possible exceptions such as proportionality or 
cases where the victims would die regardless of the participation of the accused. 
Their preferred approach was to consider duress exclusively as a mitigating 

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factor during the sentencing phase. The rejection of duress as a complete 
defense was, however, applicable to soldiers alone: 

84. Secondly, as we have confined the scope of our inquiry to the question 
whether duress affords a complete defence to a soldier charged with killing 
innocent persons, we are of the view that soldiers or combatants are expected to 
exercise fortitude and a greater degree of resistance to a threat than civilians, at 
least when it is their own lives which are being threatened. Soldiers, by the very 
nature of their occupation, must have envisaged the possibility of violent death 
in pursuance of the cause for which they fight. The relevant question must 
therefore be framed in terms of what may be expected from the ordinary soldier 
in the situation of the Appellant. What is to be expected of such an ordinary 
soldier is not, by our approach, analysed in terms of a utilitarian approach 
involving the weighing up of harms. Rather, it is based on the proposition that it 
is unacceptable to allow a trained fighter, whose job necessarily entails the 
occupational hazard of dying, to avail himself of a complete defence to a crime in 
which he killed one or more innocent persons. 

Judge Li, in his separate dissenting opinion, adopted somewhat similar 
reasoning (paras. 5-12). Judge Cassese submitted a forceful dissenting 
opinion: 

1 1 . I also respectfully disagree with the conclusions of the majority of the 
Appeals Chamber concerning duress, as set out in the Joint Separate Opinion 
of their Honours Judge McDonald and Judge Vohrah and on the following 
grounds: 

(i) after finding that no specific international rule has evolved on the question 
of whether duress affords a complete defence to the killing of innocent persons, 
the majority should have drawn the only conclusion imposed by law and logic, 
namely that the general rule on duress should apply — subject, of course, to the 
necessary requirements. In logic, if no exception to a general rule be proved, then 
the general rule prevails. Likewise in law, if one looks for a specific rule governing 
a specific aspect of a matter and concludes that no such rule has taken shape, the 
only inference to be drawn is that the specific aspects is regulated by the rule 
governing the general matter: 

(ii) instead of this simple conclusion, the majority of the Appeals Chamber 
has embarked upon a detailed investigation of "practical policy considerations" 
and has concluded by upholding "policy considerations" substantially based on 
English law. 1 submit that this examination is extraneous to the task of our Tribunal. 
This International Tribunal is called upon to apply international law, in 
particular our Statute and principles and rules of international humanitarian law 

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and international criminal law. Our International Tribunal is a court of law; it is 
bound only by international law. It should therefore refrain from engaging in 
meta-legal analyses. . . . 

12. In short, I consider that: (1) under international criminal law duress may 
be generally urged as a defence, provided certain strict requirements are met; 
when it cannot be admitted as a defence, duress may nevertheless be acted upon 
as a mitigating circumstance: (2) with regard to war crimes or crimes against 
humanity whose underlying offence is murder or more generally the taking of 
human life, no special rule of customary international law has evolved on the 
matter; consequently, even with respect to these offences the general rule on 
duress applies; it follows that duress may amount to a defence provided that its 
stringent requirements are met. . . . 

The relevant case-law is almost unanimous in requiring four strict conditions 
to be met for duress to be upheld as a defence, namely: 

(i) the act charged was done under an immediate threat of severe and 
irreparable harm to life or limb; 

(ii) there was no adequate means of averting such evil; 

(iii) the crime committed was not disproportionate to the evil threatened 
(this would, for example, occur in case of killing in order to avert an assault). In 
other words, in order not to be disproportionate, the crime committed under 
duress must be, on balance, the lesser of two evils; 

(iv) the situation leading to duress must not have been voluntarily brought 
about by the person coerced. 

In addition, the relevant national legislation supports the principle that the 
existence in law of any special duty on the part of the accused towards the victim 
may preclude the possibility of raising duress as a defence. 

17. It is worth insisting on the fourth requirement just mentioned, in order to 
highlight its particular relevance to war-like situations. According to the 
case-law on international humanitarian law, duress or necessity cannot excuse 
from criminal responsibility the person who intends to avail himself of such 
defence if he freely and knowingly chose to become a member of a unit, 
organisation or group institutionally intent upon actions contrary to 
international humanitarian law. 

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Judge Stephen, in a separate and dissenting opinion, agreed with Judge Cassese 
and critized the rationale of the common law approach and the desirability of 
transferring it to the international arena (paras. 64-67). 

Reprisals, A reprisal is an illegal act resorted to after the other side in an armed 
conflict has committed unlawful acts and continues them after being called 
upon to cease. The reprisal is not a retaliatory act or a simple act of vengeance; 
it is a crude law-enforcement device. It must be roughly proportionate to the 
original wrongdoing, and it must be terminated as soon as the original 
wrongdoer ceases illegal actions. 60 In certain circumstances, the defense of 
reprisal may be raised to charges for offenses within the jurisdiction of the 
ICTY. Reprisals against several categories of persons and objects are prohibited 
by the treaty law applicable to international armed conflict. In particular, 
reprisals are prohibited against civilians and civilian objects. For all practical 
purposes, the only legitimate reprisal targets in international conflict are 
combatants and certain other military objectives. The treaty law of internal 
conflicts does not address the reprisal issue. UN General Assembly Resolution 
2675 indicates that reprisals against civilians are prohibited in all 
circumstances. 61 

The question of the reprisal defense was litigated in the Rule 61 proceeding 
concerning Milan Marti in February 1996. The prosecution argued that the 
Chamber should decide that reprisals against civilians were prohibited in all 
conflicts, including internal conflicts, because (1) an explicit prohibition 
already existed in treaties applicable to international conflict; (2) UNGA 
Resolution 2675 reflects the state of customary law for all conflicts; (3) Article 
4 of Protocol II requiring protection of civilians "in all circumstances" 
implicitly prohibits reprisals; and (4) reprisals are an ineffective means of law 
enforcement. 62 The Trial Chamber agreed: 

17. Therefore, the rule which states that reprisals against the civilian 
population as such, or individual civilians, are prohibited in all circumstances, 
even when confronted by wrongful behaviour of the other party, is an integral 
part of customary international law and must be respected in all armed 
conflicts. 63 

Future Developments 

The jurisprudence of the ICTY is a work in progress. The ICTY judges were 
initially elected for a four -year term that expired on 16 November 1997. Five of 
the sitting judges have been reelected, and six new judges have been elected, 

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commencing four-year terms on 17 November 1997. The duration of the 1CTY 
is uncertain and dependent on budgetary approval by the United Nations 
General Assembly. Certainly, there is enough work to keep the 1CTY fully 
employed beyond 2001. It is reasonable to assume that the 1CTY jurisprudence 
will have an impact on the development of the law of armed conflict for some 
time to come, particularly as this jurisprudence is analyzed in foreign ministries, 
defense departments, and academic journals. 

It is practicable to make preliminary assessments o{ what has happened to 
date. The various and continuing efforts of the several ICTY Chambers to 
grapple with the extreme complexity of the facts in the Yugoslav conflict(s) to 
determine the applicable law are, it is suggested, to be commended rather than 
criticized. The simplistic approaches of much scholarly writing in this area have 
produced convenient but essentially unreasoned solutions. For obvious 
reasons, no one raised the issue of whether or not World War II was a "war" in 
the trials following that conflict. Most contemporary conflicts do raise issues 
related to conflict classification, and these issues must be faced as long as the 
bodies of law applicable to international and internal conflicts differ in 
complexity and sophistication, as they do at present. The approach of the 
Appeals Chamber to elaborating upon customary law applicable to all conflicts, 
individual criminal responsibility for offenses committed in internal conflicts, 
and customary law in internal conflicts will have an enormous impact on the 
future jurisprudence of the ICTY. It may also, to the extent it is viewed as 
credible by outside observers, precipitate and contribute to a long-term trend 
toward the development of a uniform body of customary law applicable to all 
conflicts. The "two box" approach to the law of armed conflict for international 
and internal conflict is a viable teaching tool but presents substantial 
difficulties when applied to a refractory reality. 

The work of the ICTY in elaborating upon the meaning and scope of crimes 
against humanity, command responsibility, the defense of duress, and the 
doctrine of reprisals has begun, but much remains to be done concerning these 
and other issues. It is unlikely that defendants in future cases will decline to 
raise the defense of legitimate reprisal when the single relevant decision to date 
has been made in a Rule 61 proceeding. It is also unlikely that defendants will 
decline to raise the defense of duress when the Appeals Chamber ruling in 
Erdemovic has been so hotly contested. Further, bearing in mind the mixed 
civilian and military leadership roles of several of the accused now in custody, 
the ICTY will be compelled to assess the extent to which the doctrine of 
command responsibility applies to civilian leaders. 

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It is also reasonable to assume that the ICTY will make a substantial 
contribution to the law concerning the conduct of hostilities. Three 
observations are relevant in this regard. First, to the extent practicable, the 
ICTY OTP has paid due heed to the ruling of the Appeals Chamber in the Tadic 
Jurisdiction decision and has attempted to frame charges which are applicable 
to both international and internal armed conflicts. One example is Count 3 of 
the Amended Indictment against General Blaskic, which charges him with "an 
unenumerated Violation of the Laws or Customs of War, as recognized by 
Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Customary Law, 
Article 5 1 (2) of Additional Protocol I and Article 13 (2) of Additional Protocol 
II (unlawful attack on civilians)." 64 One potential result of this charging 
practice is that the Chambers will respond by developing substantially uniform 
standards for all forms of conflict. 

Second, it is probable that the Chambers will consider for the first time 
charges such as inflicting terror on the civilian population. Acts or threats of 
violence the primary purpose of which is to spread terror among the civilian 
population are prohibited by both Article 51(2) of Protocol I and Article 13(2) 
of Protocol II. The dictionary defines terror as "extreme fear," but many lawful 
acts in armed conflict cause extreme fear. The prohibition must, therefore, 
refer to unlawful acts or unlawful threats of violence, the primary purpose of 
which is to spread extreme fear among the civilian population. Threats to wipe 
out a city or to exterminate its population would be clear examples of 
prohibited threats. Whether or not unlawful acts do in fact spread terror 
among the civilian population can be determined by psychological evidence; 
whether or not the primary purpose of unlawful acts is to spread terror can be 
inferred from the circumstances. For example, conducting cat-and-mouse 
sniping against the civilians of a besieged city whereby some civilians would be 
attacked on a random basis and all civilians would be in a constant state of 
extreme fear would appear to be an example of a deliberate attempt to spread 
terror. 

Third, it is possible that a body of law based on the uncodified concept o{ 
crimes against humanity will be developed in parallel with the existing law 
concerning the conduct of hostilities. It would be practicable to prosecute 
certain attacks against the enemy as crimes against humanity contrary to 
Article 5 of the Statute. The Report of the Secretary General discussing the 
ICTY Statute states in part that "crimes against humanity refer to inhumane 
acts of a very serious nature, such as wilful killing, torture or rape, committed as 
part of a widespread or systematic attack against any civilian population on 
national, political, ethnic, racial or religious grounds." 65 Although there is no 



113 



Jurisprudence of the ICT for the Former Yugoslavia 

precedent for crimes against humanity charges related to attacks against the 
enemy, there would not appear to be any conceptual barrier against using such 
charges in appropriate circumstances. The most appropriate charges would 
appear to be under Article 5(a) for attacks where death occurs, and under 
Article 5(i) for other injuries including mental suffering. It would be essential 
to establish that the prohibited acts were committed as part of a widespread or 
systematic attack against a civilian population. If the ICTY does elaborate a 
body of law for the conduct of hostilities based on an imprecise concept o{ 
crimes against humanity and, at a minimum, independent oi conflict 
classification, the relatively precise law of armed conflict may be shaken to its 
foundations. 



Notes 



These comments are made in a personal capacity and necesarily reflect neither the author's 
views in an official capacity nor the views of either the Office of the Prosecutor or the United 
Nations. 

1. The ICTY Statute is contained in the Annex to the Secretary-General's Report on 
Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for 
Serious Violations of International Humanitarian Law Committed in the Territory of the Former 
Yugoslavia (Report of the Secretary-General Pursuant to Paragraph 2 of Security Council 
Resolution 808 (1993)), U.N. SCOR, 48th Sess., U.N. Doc. S/25704 (1993), reprinted in 32 
I.L.M. 1159 (1993). The language of the Statute itself is found at 32 I.L.M. 1192 (1993) 
[hereinafter ICTY Statute! . It was adopted unanimously by the Security Council at its 3217th 
meeting, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. 
S/RES/827 (1993), reprinted in 32 I.L.M. 1203 (1993). 

2. Security Council Resolution 955 Establishing the International Tribunal for Rwanda, 
Including the Statute of the Tribunal (1994) , S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., 
art. 1, U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598 (1994) {hereinafter ITR 
Statute]. The ITR Statute was adopted by the Security Council on November 8, 1994, and is an 
Annex to Resolution 955. 

3. As examples, the Trial Chamber Decision on the Motion for Release by the Accused Slavko 
Dokmanovic (ICTY No. IT 95-13a-PT) issued on 22 October 1997 addresses the ICTY power of 
arrest, and the Appeals Chamber Judgment on the Request of the Republic of Croatia for Review of 
the Decision of Trial Chamber 11 of 18 July 1997 (ICTY No. IT 95-14-AR 108bis) issued on 29 
October 1997 addresses the ICTY power to issue orders to States and to State officials. 

4. ICTY Fact Sheet January 19, 1998. 

5. Theodor Meron, The Geneva Conventions as Customary Law, 81 AM. J. INPL L. 348-70 
(1987), and Report of the Secretary-General pursuant to Paragraph 2 of Security Council 
Resolution 808 (1993), U.N. Doc. S/25704, May 3, 1993, paras 35-37. 

6. The Socialist Federal Republic of Yugoslavia (SFRY) ratified Geneva Conventions I— IV 
in 1950 and Additional Protocols I and II in 1979. The Federal Republic of Yugoslavia has 
acknowledged that it is bound by these agreements as a successor State. Croatia deposited a 
declaration of succession to Geneva Conventions I— IV and Additional Protocols I and II on May 
11, 1992, and because of previous ratification by the SFRY, these instruments came into force for 

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Croatia retroactively on October 8, 1991, the date of Croatian independence. See International 
Committee of the Red Cross, Notification to the Governments of the States Parties to the 
Geneva Conventions of 12 August 1949 for the Protection of War Victims: Succession of 
Croatia, July 9, 1992 (on file with author). Bosnia -Herzegovina deposited a declaration of 
succession to Geneva Conventions I— IV and Additional Protocols I and II on December 31, 
1992, and because of previous ratification by the SFRY, these instruments came into force 
retroactively on March 6, 1992, the date of Bosnian independence. See International Committee 
of the Red Cross, Notification to the Governments of the States Parties to the Geneva 
Conventions of 12 August 1949 for the Protection of War Victims: Succession of 
Bosnia-Herzegovina, Feb. 17, 1993 (on file with author). 

7. Croatia has entered into the following agreements: (a) a Declaration of Respect for 
International Humanitarian Law at the Hague on November 5, 1991 (Presidents of all six 
republics of the former Yugoslavia made the same declaration); (b) a memorandum of 
Understanding with the SFRY on November 27, 1991 in Geneva; (c) a Set of Rules of 
Procedures and a Plan of Operation for a Joint Commission to Trace Missing Persons and Mortal 
Remains, signed in Pecs, Hungary, with the SFRY on December 16, 1991, pursuant to the 
November 27, 1991, MOU; (d) an Addendum to the November 27, 1991, MOU signed in 
Geneva on May 23, 1992, with the Federal Republic of Yugoslavia (FRY) ; and (e) an Agreement 
on Release and Repatriation of Prisoners signed in Budapest on August 7, 1992, and concluded 
in the framework of the November 27, 1991, MOU and the May 23, 1992, Addendum to the 
MOU. 

Bosnia-Herzegovina has entered into the following agreements: (a) a Declaration of Respect 
for International Humanitarian Law at the Hague on November 5, 1991 (Presidents of all six 
republics of the former Yugoslavia made the same declaration); (b) an Agreement under 
common Article 3 of the Geneva Conventions signed in Geneva on May 22, 1992, by 
representatives of the President of Bosnia-Herzegovina (Izetbegovic) , the President of the 
Serbian Democratic Party (Karadzic) , the President of the Croatian Democratic Community 
(Bikic), and the President of the Party of Democratic Action (Izetbegovic again); (c) an 
Agreement to implement the May 22, 1992, agreement signed in Geneva on May 23, 1992, and 
involving representatives of the same groups; (d) an Agreement to establish the 
Bosnia-Herzegovina ICRC Plan of Action following the May 22, 1992, agreement signed in 
Geneva on June 6, 1992, by representatives of the President of Bosnia- Herzegovina, the 
President of the Serbian Democratic Party, and the President of the Croatian Democratic 
Community (the representative of the President of the Party of Democratic Action was not able 
to attend the meeting and was not invited to ratify the agreement) ; (e) a Programme of Action 
on Humanitarian Issues Agreed between the Co-Chairman to the London Conference on 
August 27, 1992, and the Parties to the conflict, signed on separate but identical documents by 
Radovan Karadzic, by Alija Izetbegovic (who indicated in handwriting that he was signing as 
President of the Republic of Bosnia-Herzegovina) , and by Mate Boban; and (f) an Agreement on 
the Release of Transfer of Prisoners signed in Geneva on October 1, 1992, on the basis of the 
agreement of May 22, 1992, by representatives of the President of the Republic of 
Bosnia-Herzegovina, the President of the Serbian Democratic Party, the President of the 
Croatian Community, and the Party of Democratic Action. 

8. In re Dusko Tadic: Decision on the Defence Motion for Interlocutory Appeal on 
Jurisdiction (The Prosecutor v. Dusko Tadic), 1995 I.C.T.Y. No. IT-94-1-AR72 (Oct. 2), 
majority decision reprinted in 35 I.L.M. 32 (1996) [hereinafter Jurisdiction DecisionJ. 



115 



Jurisprudence of the ICT for the Former Yugoslavia 

9. In re Dusko Tadic: Defence Brief to Support the Motion on the Jurisdiction of the 
Tribunal (The Prosecutor v. Dusko Tadic), 1995 I.C.T.Y. No. IT-94-I Oune 23), at 1142 
[hereinafter Defence Brief]. 

10. In re Dusko Tadic: Response to the Motion of the Defence on the Jurisdiction of the 
Tribunal (The Prosecutor v. Dusko Tadic), 1995 I.C.T.Y. No. IT-94-I Ouly 7), at 36-46 
[hereinafter Response Brief]. 

11. In re Dusko Tadic: Amicus Curiae Brief Presented By the Government of the United 
States of America (The Prosecutor v. Dusko Tadic), 1995 I.C.T.Y. No. IT-94-I Ouly 17), at 
25-36. 

12. In re Dusko Tadic: Prosecution Response to the Defence Interlocutory Appeal Brief 
(The Prosecutor v. Dusko Tadic), I.C.T.Y. No. IT-94-I, (Sept. 1), at 2-13. 

13. Jurisdiction Decision, supra note 8, para. 77, at 57. 

14. Id., para. 84, at 60. 

15. Id., para. 76. 

16. Id., para. 85, at 60, paras. 143-44, at 73. 

17. Jurisdiction Decision, supra note 8, at 6 (separate opinion of Judge Abi-Saab). 

18. International Tribunal for the Prosecution of Persons Responsible for Serious Violations 
of International Humanitarian law Committed in the Territory of the former Yugoslavia since 
1991, Rules of Procedure and Evidence, U.N. Doc. IT/32/Rev.ll, July 25, 1997. Rule 61 
addresses the procedure to be followed in case of failure to execute a warrant and provides for an 
ex parte proceeding before one of the trial chambers, during which the prosecutor presents some 
of the evidence in the case and attempts to have the indictment reconfirmed. As there is no 
finding of guilt or innocence, it is not a trial in absentia. 

19. Prosecutor v. Ivica Rajic Review of the Indictment Pursuant to Rule 61 of the Rules of 
Procedure and Evidence, I.C.T.Y. No. IT-95-12-R61, Sept. 13, 1996. 

20. Prosecutor v. Dusko Tadic, Opinion and Judgment, I.C.T.Y. No. IT-94T-T 7 (May 
1997) (hereinafter Tadic Trial Decision). 

21. Military and Paramilitary Activities in and against Nicaragua (Nic. v. U.S.), Merits, 
Judgment, 1986 I.C.J. Reports 14. 

22. Supra note 20, paras 118-20, 569. 

23. Id., para 584. 

24- Supra note 21, para 115 (emphasis added). 

25. Supra note 8, para 586. 

26. Id., para 587. 

27. Id., paras 607-08. 

28. Supra note 21, Sep. Op. Judge Ago, para. 16 (emphasis added). 

29. Brief of Argument of the Prosecution (Cross-Appellant) The Prosecutor v. Dusko Tadic 
I.C.T.Y. No. IT-94-I-A Can. 12, 1998), at 5-45. 

30. Id. at 13-30. 

31. Defence Brief, supra note 9, at 12. 

32. Response Brief, supra note 10, at 47-53. 

33. Michael Akehurst, Custom as a Source of International Law, 47 BRIT. Y.B. INTL L. 53 
(1974-75). 

34. See Geneva Convention I, art. 49; Geneva Convention II, art. 50; Geneva Convention 
III, art. 129; Geneva Convention IV, art 146. 

35. Michael Botheetal, New Rules for Victims of Armed Conflicts 620 (1982). 

36. See, e.g., Peter Rowe, War Crimes and the Former Yugoslavia: The Legal Difficulties, 32 MIL. 
L. & L. WAR REV. 317, 331-33 (1993); Daphna Shrag & Ralph Zacklin, The International 

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William Fenrick 



Criminal Tribunal for the Former Yugoslavia, 5 EUR. J. INT'L L. 360, 366 (1994); Frits Kalshoven, 
Paper Prepared for Symposium on the International Criminal Tribunal for Former Yugoslavia, 
The Hague (Feb. 16, 1995) (unpublished manuscript). 

37. Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1995 I.C.J. 75 (CR 
95/34) (Nov. 15) (Verbatim Record). 

38. Id. at 77. 

39. Id. at 79. 

40. Supra note 21, at para 218, citing Corfu Channel, Merits, 1949 I.C.J. Rep. 22. 

41. Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL 
MILITARY TRIBUNAL 171, 253-54 (1947) [hereinafter Nuremberg Judgment]. 

42. The Judgment of the Tribunal (in The German High Command Trial), 12 LAW 

Reports of Trials of War Criminals 59, 86-94 (1949). 

43. Supra note 21. 

44. Mer on, supra note 5, at 361. 

45. Charter of the International Military Tribunal, art. 6(c), in THE LAWS OF ARMED 
CONFLICT 911, 913-14 (Dietrich Schindler & Jiri Toman eds., 3rd ed. 1988) [hereinafter 
Nuremberg Charter]. 

46. Nuremberg Judgment, supra note 41, at 254-55. 

47. Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes 
against Peace and against Humanity, Dec. 20, 1945, in HOWARD S. LEVIE, TERRORISM IN WAR: 

The Law of War Crimes 558, 558-62 (1993). 

48. Nuremberg Charter, supra note 45, art. 6(c). 

49. The Tribunals in the Einsatzgruppen Case and the Justice Case decided no link with armed 
conflict is necessary. See LEVIE, supra note 47, at 395-99. The Tribunals in the Flick Case and the 
Ministries Case decided otherwise. See id. at 399. 

50. Defence Brief, supra note 9, at 12-13. 

51. Jurisdiction Decision, supra note 8, paras. 72, 138-42. 

52. Supra note 29, at 59-66. 

53. Id. at 61-11. 

54- Defence Motion in Limine Regarding Mens Rea Required for Charges Alleging 
Command Responsibility and for Bill of Particulars re Command Responsibility Portion of 
Indictment, Prosecutor v. Tihomir Blaskic, I.C.T.Y. Case No. IT-95-14-T, filed Dec. 4, 1996. 

55. Response of the Prosecutor to the Defence Motion in Limine Regarding Mens Rea for 
Charges Alleging Command Responsibility and for Bill of Particulars re Command 
Responsibility Portions of the Indictment, Prosecutor v. Tihomir Blaskic, I.C.T.Y. Case No. 
IT-95-14-T, filed Jan. 20, 1997. 

56. Decision Rejecting the Defence Motion in Limine Regarding Mens Rea Required for 
Charges Alleging Command Responsibility and for Bill of Particulars re Command 
Responsibility Portions of the Indictment, Prosecutor v. Tihomir Blaskic, I.C.T.Y. Case No 
IT-95-14-T, filed Apr. 4, 1997. 

57. Decision on the Defence Motion to Strike Portions of the Amended Indictment Alleging 
"Failure to Punish" Liability, Prosecutor v. Tihomir Blaskic, I.C.T.Y. Case No IT-95-14-T, Apr. 
4, 1997, para 9. 

58. Sentencing Judgment, The Prosecutor v. Drazen Erdemovic, I.C.T.Y. Case No. 
IT-96-22-T, Nov. 29, 1996, para 10. 

59. Judgment of the Appeals Chamber, Prosecutor v. Drazen Erdemovic, I.C.T.Y. Case No. 
IT-96-22-A, Oct. 7, 1997, para 19. 



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Jurisprudence of the ICT for the Former Yugoslavia 

60. Frits Kalshoven, Belligerent Reprisals (1971); Frits Kalshoven, Belligerent 

Reprisals Revisited, 21 NETH. Y.B. iNrLL. 43 (1990). 

61. G.A. Res. 2675, U.N. GAOR 25th Sess., Supp. No. 28, U.N. Doc A/8028 (1996). 

62. Brief on the Applicable Law for Rule 61 Hearing, Prosecutor v. Milan Martic, I.C.T.Y. 
Case No. IT-95-11 (1996). 

63. Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 
Prosecutor v. Milan Martic, I.C.T.Y. Case No. IT-95-11-R61, Mar. 13, 1996. 

64- Amended Indictment, Prosecutor of the Tribunal v. Tihomir Blaskic, I.C.T.Y. Case No. 
IT'95-14'T,Nov. 15, 1996. 

65. SG Report, supra, note 5, para 48. 



118 



V 



The Role of Individuals 

in International Humanitarian Law 

and Challenges for States in Its 

Development 



Dieter Fleck 



A 



CENTURY AGO, ADMIRAL CHARLES H. STOCKTON prepared a 
U.S. Naval War Code which was approved by President McKinley in 
June 1900 but was revoked four years later after certain concerns were 
expressed by foreign governments. While it appears that the episode would 
deserve a historical study evaluating the significance of this particular code 
both for training Navy officers at the time and for later similar efforts, the more 
general question of the role of individuals in international humanitarian law 
appears worth being reflected upon in a study honoring Charles Stockton. 
What is the role of individuals in international law? To what extent are 
individuals bearers of international legal rights and obligations? What is their 
role as actors in the progressive development of that law? 

Not surprisingly, different answers to these complex questions have been 
considered over time, and they remain rather controversial. As Karl Josef 
Partsch concluded in 1985, it is difficult to formulate a thesis in this respect 



Role of Individuals 



which both reflects a general consensus among writers and conforms with State 
practice. He also expressed doubts whether the increased concern for the 
protection of human rights during the last decades has led to a transformation 
of the legal position of the individual. 1 Indeed, the central role of States as 
sovereign subjects of international law has not changed very much throughout 
this century. But political efforts to ensure protection of the individual and the 
non-governmental, as well as governmental, international organizations 
working to this end have gained considerable influence. It is significant that 
practical aspects in the wider field of human rights and public opinion in many 
quarters have increasingly challenged more traditional views of international 
law as a whole, thus underlining the rights of individuals which all States must 
respect and protect. 

The aims of this study are to describe the role of the individual in the 
ongoing evolution of international humanitarian law as a result of both factual 
and policy developments, assess certain deficiencies of existing conventional 
law, and develop various methodological considerations regarding 
international law-making for military operations. Conclusions to be drawn 
from these thoughts may affect the work of policy makers, legal practitioners, 
and academic lawyers alike. 

Evolution of International Humanitarian Law 

Rights and obligations of individuals vis-a-vis their government have been 
postulated since long before our present age. The specific question of whether 
the Sovereign has an international obligation to observe the ordinary laws of 
war even toward rebellious subjects who openly take up arms against him had 
already surfaced by the eighteenth century. 2 Individuals were not seen as 
subjects of international law, a role that has been reserved for States since early 
times. But characterizing human beings as pure objects of international law has 
never been a convincing conclusion either. The subject-object dichotomy 
appears hardly appropriate in an area where legal protection of individuals is of 
topical importance. 3 

The rapid factual development during the present century has added 
additional arguments: national sovereignty is challenged today by the end of 
the Cold War, failed processes of modernization, and still-existing burdens 
inherited from colonialism. There is, indeed, a need for global response to 
existing security risks. Acts of terrorism, drug abuse, problems of migration, 
and environmental protection require combined efforts which States today 
cannot successfully perform except in cooperation with other States, 

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Dieter Fleck 



international organizations, and even individuals. Challenged to deal with 
security matters in a broader sense, States and societies are called upon to make 
new efforts in order to overcome practical inabilities in the implementation of 
shared principles. New ideas, attitudes, and resources have to be developed 
jointly to ensure economic well-being and to meet environmental risks. The 
challenges of our present information age require long-term attitudes based on 
technological skills not always available within existing State establishments, 
thus calling for increased cooperation between government agencies, private 
companies, and individuals. 

A distinct international interest on the part of national parliaments in a 
growing number of democratic States today very significantly affects effort 
taken on a global scale. Widely shared political concerns (in some States even 
constitutional constraints) are relevant for parliamentary decision-making 
regarding the use of military power. But there is also an increasing role for 
human rights considerations, in calling for responsible action towards gross 
violations in other States. National parliaments are increasingly involved in 
international relations. They pass legislation regulating the sending of their 
military forces abroad and the long-term or short-term stationing of foreign 
forces on their own territory. Members of national parliaments participate in 
international conferences and are important interlocutors for official visitors 
from foreign States. Parliamentary debates are often used to articulate a 
political interest in developments within other countries. 

Human rights violations are typical fields of legitimate interference in 
matters of general concern which today cannot be left to the domestic 
jurisdiction of a particular State. State sovereignty at the end of this century is 
no longer the same as it was at its beginning. These trends also reveal evolving 
restraints in State immunity law, restraints which deserve thorough evaluation 
from both national and international legal perspectives. 

The present evolution of humanitarian law may be described as an evolution 
of terms. The term armed conflict, which for a long time was not considered very 
different from a war between States (whether formerly declared or factually 
started), has now more or less evolved in meaning vis-a-vis its international 
character. By far, most armed conflicts today are non-international. Very much 
to be deplored, this development has not led to a decrease in cruelty on the 
battlefield. The extent of suffering in non-international armed conflicts calls 
for an international response. The term humanitarian protection has undergone 
a similar development. It was first used to indicate protection granted by States, 
on issues limited by strict adherence to the principle of non-interference in the 
political affairs of other States. But there is hardly any objection today to 

121 



Role of Individuals 



application of this term in a broader sense, including the right to intervene for 
humanitarian purposes against policy positions taken by other States. It also 
encompasses the activities of non-governmental organizations (NGOs), and 
even individuals, to ensure and strengthen human rights protection. This 
change inevitably leads to a new notion of international law, which is no longer 
confined to the conduct of States in their mutual relationships but now extends 
to individual human rights and to the global commitments of States not only to 
respect but also to ensure respect for the protection of victims of human rights 
violations. 

In 1899 and 1907 the Hague Peace Conferences took decisive steps, first by 
incorporating the obligation to issue instructions to the armed forces on the 
laws and customs of war on land (Article 1 of Hague Convention IV), and later 
by providing that a belligerent party which violates these regulations shall be 
responsible for all acts committed by its armed forces and liable to pay 
compensation (Article 3 of Hague Convention IV). 

After World War I there were but weak attempts to develop individual 
criminal responsibility under international law. 4 However, individual rights 
were stressed and developed in various domains. The concept of the protection 
of minorities, provided for in several peace treaties and special conventions 
connected therewith, generated a new attitude of conflict management in 
certain States which had either gained their independence or whose territory 
was otherwise affected by the results oi the war. Although the great powers 
effectively rejected any effort to extend this protection to minorities in other 
States, the underlying legal principles influenced the Declaration on the 
International Rights of Man adopted by the Institut de Droit International in 
1929. 5 The concept of self-determination, developed by President Woodrow 
Wilson, constituted the basis for the protection of non-self-governing 
territories under the League of Nations mandate system. For the first time, the 
protection of refugees under international law was implemented in a 
multinational framework. Last, but not least, the Geneva Conventions of 1929 
considerably improved the condition of the wounded and sick in armies in the 
field, as well as the treatment of prisoners of war. 

No effort was made at that time to enact individual responsibility oi either 
political or military leaders or those executing orders. But acts of genocide, war 
crimes, and crimes against humanity committed in World War II mobilized the 
international community to take at least the first steps to close this gap. The 
Genocide Convention of 1948 defined genocide as a crime under international 
law and introduced an obligation to try or extradite persons charged with this 
crime. It provides that competence rests with national tribunals of the State in 

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Dieter Fleck 



the territory of which the act was committed, or "such international penal 
tribunal as may have jurisdiction" (Article VI). The obligation under the 
Geneva Conventions of 1949 to punish or extradite persons who have 
committed grave breaches of humanitarian law was similarly based on the idea 
of national jurisdiction. The same applies to penal and disciplinary sanctions 
under Article 28 of the Cultural Property Convention of 1954. Nevertheless, 
these instruments effectively introduced the principle of individual 
responsibility for war crimes and crimes against humanity into conventional 
law, thus confirming the conclusion of the Nuremberg Tribunal that "[c] rimes 
against international law are committed by men, not by abstract entities, and 
only by punishing individuals who commit such crimes can the provisions of 
international law be enforced." 

While the idea of individual responsibility under international law has 
developed considerably during this century, there is still a reluctance to accept 
corresponding rights of the individual, rights based on international legal rules 
and given teeth by specific remedies against one's own, as well as foreign, 
States. Current State practice normally limits legal remedies to strict rules 
under existing national law. Arguments based on international law are hardly 
of importance to national jurisdiction. Where the question of remedies for 
violation of rights based on international law is raised, it is as a matter of 
principle not for the individual owner of such rights to take effective action, but 
rather the State of which he or she is a national. 

The Third Geneva Convention of 1949 was one of the first international 
instruments to establish an individual right corresponding to the idea o( 
individual responsibility. According to its Article 109, paragraph 3, no sick or 
injured prisoner of war may be repatriated against his will during hostilities. 
This right was further developed by the evolving practice of ensuring each 
prisoner of war the right to refuse repatriation at the end of an armed conflict, if 
he so chooses, and the right to have a private interview with an ICRC 
(International Committee of the Red Cross) official to confirm that his 
decision was made freely and without coercion. 

The 1977 Additional Protocols did not further develop those individual 
rights, except to provide fundamental legal guarantees to be granted within the 
relevant national system (Article 75 of Protocol I) and a right to refuse surgical 
operation (Article 11). In human rights conventions, however, a decisive step 
was taken to strengthen the rights of individual persons. The 1966 Optional 
Protocol to the International Covenant on Civil and Political Rights provides 
that a State may recognize the competence of the Committee of Human Rights 
to receive and consider communications from individuals subject to its 

123 



Role of Individuals 



jurisdiction who claim to be victims of a violation by that State of any of the 
rights enumerated in the Covenant, provided they have exhausted all available 
domestic remedies. Likewise, the 1984 Torture Convention introduced the 
option for a State to accept the competence of the International Committee 
against Torture to investigate complaints by individuals falling under the 
jurisdiction of that particular State. 

Even in the absence of legal remedies, individuals may claim collective 
rights, e.g., the right of self-determination as confirmed in Article 1(2) of the 
UN Charter and common Article 1(1) of the 1966 Covenants on Civil and 
Political Rights and on Economic, Social, and Cultural Rights. There is some 
sense, therefore, in assuming that respect for this right is an erga omnes 
obligation binding all States and owed to the international community as a 
whole. The right of self-determination cannot be limited to the peoples of 
existing States; otherwise, there would be no self-determination beyond a 
closed and often very arbitrary system which in itself provides the basis for 
demands for change. There is, however, no consensus on the present legal 
prerequisites for claiming a right of self-determination. The liquidation of 
former European colonial regimes might be least controversial today. The 
United Nations has outlawed colonialism, and ail relevant decisions can be 
effectively based on Chapters XI— XIII of the UN Charter. The right of 
self-determination may also be used to support efforts to restore sovereignty in 
territories where it has been illegally denied in recent times. In situations, 
however, which are characterized by neither colonialism nor illegal 
occupation, any recourse to the right of self-determination remains highly 
controversial. There is no right of separation from well-established States. An 
exception to this rule may be the fact that serious human rights violations 
could generate a right of separation as a last resort. 7 Consensus on this issue will 
remain difficult to achieve. It is no surprise that acceptance of the right of 
self-determination in the international community tends to increase 
proportionally with the distance from actual events. 

Within the Organization on Security and Cooperation in Europe (OSCE) 
process, the significance of the human dimension was stressed by the third 
basket of the Helsinki Final Act of August 1, 1975, and more specifically during 
the meetings held in 1989 (Vienna), 1990 (Copenhagen), and 1991 (Cracow, 
Geneva, and Moscow). It remains to be seen, however, whether this process 
may lead to the creation of new individual rights which go beyond a 
strengthening of existing commitments under the International Covenant on 
Civil and Political Rights of 1966 and the European Convention on Human 
Rights and Fundamental Freedoms of 1950. The International Helsinki 



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Dieter Fleck 



Federation, in its 1997 Report, stated that human rights violations had been, 
and were still being, committed in thirty-two of the fifty-four OSCE member 
States; yet, there is no effective international mechanism to examine such 
allegations or to ensure that appropriate remedies are available in the interest 
of the victims. 

In accordance with the jurisdiction of the Court of Justice of the European 
Communities, any citizen of the European Union has a right to see the law 
determining his or her position respected by Community institutions, as well as 
member States. This right, and the corresponding remedies under European 
Union law, is comparable to national legal guarantees granted by a State to its 
citizens. Such guarantees cannot be expected to become part of global 
international law in the foreseeable future. 

In a recent systematic study of the rights and obligations of individuals as 
subjects of international humanitarian law, George Aldrich has assessed the 
existing individual criminal responsibility under international law for war 
crimes, genocide, and crimes against peace, in the framework of possible 
individual rights corresponding to individual obligations. 9 He very 
convincingly stresses that the latter are much less developed than the former. 
In this context, he has coined the term "imperfect right" to describe a situation 
where (1) legal rights of an individual have been violated, (2) the individual 
perpetrator is subject to criminal punishment as a result, and (3) the 
perpetrator, as well as his State, may at least theoretically be liable for damages. 
While individual remedies are available only in exceptional cases, individual 
claims remain widely dependent upon protection by the State concerned, and 
the latter is alone authorized to put such claims forward, or even waive them at 
the expense of those whose rights have been violated. 

The extent to which attempts to solve this situation are realistic is 
debatable. International cooperation is regularly developed without the 
benefits of law courts, without sanctions protecting the owner of specific rights 
against violations, and without a full-fledged system of reparations. Disputes 
can very often be settled only through negotiations on the basis of formal 
equality, without recourse to higher authorities. Where reparations can be 
achieved, they often tend to remain rather symbolic. 

Yet the role of legal arguments in such cooperation should not be 
underestimated. Legal positions are of importance, irrespective of the 
opportunity for enforcing their implementation. Even symbolic acts of 
reparation may have relevance for the participants as part of psychological or 
historical Vergangenheitsbewdltigung. The dissuasive role of legal reasoning may 



125 



Role of Individuals 



add to the significance of such activities in avoiding possible claims as much as 
in settling existing ones. 

The evolution of law is a complex process, influenced by many players and 
dependent on various different sources. This is particularly true for 
international law, with all its imperfections. Efforts to overcome deficiencies in 
this area require patience and a good sense of proportion. It is in this spirit that 
existing gaps in existing international law ought to be assessed. 

Deficiencies of Existing Conventional Law 

At the present stage of legal development, it is no longer possible, as a matter 
of positive law, to regard States as the only subjects oi international law. 10 
However, there are a number of deficiencies which make it difficult for 
individuals either to exercise rights not deriving from their national legal 
system against their own State or to exercise rights against foreign States 
without the support of their own government acting on their behalf. 

The most important deficiency of international humanitarian law as laid 
down in existing conventions and agreements is its limited scope of 
applicability. Designed for armed conflicts of an international character, most 
of these rules do not formally apply to non- international armed conflicts. In an 
effort to secure minimum rules in such conflicts, common Article 3 of the 1949 
Geneva Conventions and the 1977 Additional Protocol II have underlined the 
legal difference between international and non-international armed conflicts 
in a rather rudimentary way. If these provisions were understood as limiting 
legal protection in non-international conflicts to an enumerative set of 
minimum rules, they would have to be considered as counterproductive in the 
interest o{ individual victims. Such a perception would be in strong 
contradiction to undeniable requirements o( reality on the battlefield and 
would run counter to widely accepted principles of the rule of law. An 
excessively restrictive observance of the difference between international and 
non-international armed conflicts in State practice would evidence a two-book 
mentality unlikely to find any support in public opinion. There are but few 
armed forces, however, which have formally abolished such double standards 
by following an official policy of compliance with the full body of rules of 
international humanitarian law during non-international conflicts. 11 
Corresponding recommendations developed at the international level have 
not been implemented as widely as one would wish. 12 The fact that such a 
policy serves not only humanitarian interests but also operational requirements 
has been stressed by experts; 13 nonetheless, widespread ignorance of it remains. 

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Dieter Fleck 

Yet concrete results have never been fully investigated by legal and 
operational experts. The degree to which rules of international armed conflict 
are tailored to police-type operations in different levels o( crisis during 
non-international conflicts may also be a matter of dispute. The use of the 
shotgun and tear gas, which must be seriously questioned during armed 
conflicts, was never prohibited for police operations, although the three 
general principles underlying the law of armed conflict are fully relevant to 
police operations: that the use offeree is permissible only if it is directed against 
legitimate targets, it is prohibited to cause unnecessary suffering, and perfidious 
acts are unlawful. The relevance of armed conflict law for military operations 
other than war needs to be studied in further detail. While interdisciplinary 
efforts to this effect would seem appropriate, and though the role of operational 
experts cannot be underestimated, it should not be overlooked that legal and 
policy considerations will often be decisive when balanced against factual and 
operational considerations. 

A further deficiency of international humanitarian law remains the large 
number of breaches of its existing rules. The problem is not unique to this field 
of law; it also applies to certain parts of national law, such as traffic law, 
taxation, customs, or environmental provisions. Though it would appear 
inappropriate to draw comparisons between these very different areas of legal 
regulation, one possible common conclusion may be that frequent violations 
do not necessarily amount to complete disregard of the law. Nevertheless, the 
need to further develop sanctions and foster dissemination of particular rules 
must be underlined. 

Objective fact-finding, so essential for effective law enforcement, is difficult 
to achieve. The Commission established under Article 90 of the 1977 Protocol 
I Additional to the Geneva Conventions to investigate allegations of serious 
violations of the Conventions and o{ the Protocol has not yet been given a 
single chance to provide its services. This is the case even though a growing 
number of States have recognized its competence and despite the fact that it is 
designed to work without publicity so as to avoid publicly offending States and 
to facilitate diplomatic solutions. There is no effective international 
jurisdiction at a global scale for adjudicating claims for violations of 
humanitarian law. The national jurisdiction of the author State is in many 
cases not sufficient. As far as the national jurisdiction of third States is 
concerned, the act of State doctrine still provides for sovereign immunity of the 
author State for acta iure imperii, with no exception for serious human rights 
violations. 

127 



Role of Individuals 



Given this situation, the issue of whether claims brought before the courts of 
the author State may be based on national or international law is less relevant. 
It may be noted, however, that the German Federal Constitutional Court has 
held that no general rule of international law excludes individual claims for 
acts or omissions of a foreign State committed during a war. 14 The Court saw, in 
principle, parallel remedies for individuals and States, but it also underlined the 
fact that individual claims may be expressly excluded by peace treaties and 
similar treaties, such as the London Agreement on German External Debts of 
February 27, 1953. 15 

Rights of the individual are decisively expressed by the manner and extent 
to which claims may be pursued; legal remedies to receive reparation (in terms 
of restitution or compensation) are still very imperfect. Full reparation can 
hardly be achieved in cases involving violations of humanitarian law. In this 
respect, pecuniary harm should not obscure the importance of reparation for 
emotional and moral damage. Legal restitution in terms oi criminal sanctions 
had important psychological reparation effects for raped women in the former 
Yugoslavia, even where financial payments were impossible or unrealistic. The 
work of the Truth Commission in South Africa, which leads to a lump sum 
payment of no more than two thousand Rand (U.S. $400) to each of 
twenty-two thousand victims of the apartheid regime, irrespective of the 
amount and degree of suffering, nevertheless has had the effect of restoring 
individual confidence in the rule of law in situations were adequate payment of 
damages is impossible or not expected. 

These few examples may suffice to support the thesis that no system oi 
individual claims could be considered sufficient for systematic and massive 
violations of legal principles and rules. Even States trying in the most diligent 
manner to arrange for reparations have failed to cope with the extent of cruelty 
of which humankind is capable. 

The imperfect state oi international humanitarian law implementation 
reflects a situation common to many areas of international law, one that may be 
best influenced by personal activities within governments, non-governmental 
organizations, and by the public. 16 This deficiency also offers opportunities for 
an active role by the individual, given that all implementation work depends 
on human activities at various levels oi the State and on the willingness and 
ability of State officials to cooperate with non-governmental organizations and 
private citizens. 

The role of individuals may also be affected by challenges to the law of 
neutrality during the present period of rapid development in the law. Both the 
Hague Peace Conferences prior to World War I and the development o( the 

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Dieter Fleck 



Geneva Conventions are important examples oi the role of neutral States in 
supporting the implementation and further development of humanitarian 
rules. The responsibility of neutral States to develop the law protecting 
individuals in the future is also evident. 17 

In failing States — which remain subjects of international law but, due to 
their lack of capacity to act, are exempt from responsibility under international 
law — even fundamental individual rights are unprotected. Failing States are 
characterized by total dissolution of order as a consequence of internal 
development and the absence of an effective negotiating partner vis-a-vis the 
international community. Although direct criminal responsibility o( 
individuals exists, and criminal jurisdiction can be exercised by third States and 
competent international tribunals, individual claims would appear unrealistic 
under such conditions. 1 

Considerations for International Law^Making 

It is particularly difficult to assess possibilities for international law-making 
in areas relating to military operations. States tend to stress the ad hoc 
significance of such operations. Even in cases in which military forces are 
operating in implementation of Security Council resolutions, it is not beyond 
dispute which body of law — that of armed conflict or law of peacetime 
operations — is properly applicable. This might explain the reluctance to 
acknowledge a need to develop further the rules, especially in a systematic 
manner. Furthermore, there are both general and specific obstacles to 
developing new conventional law in this area. Opinio iuris y a prerequisite for 
law creation (not only in the context of customary law), is only slowly, and 
often rather vaguely, shaped by public opinion and State practice. 

A cautious attitude towards conventional law creation is also suggested by 
recent developments. The most important example remains the experience 
with the 1977 Protocols Additional to the Geneva Conventions. It took 
considerable time, despite the presence of the ICRC as an effective and 
professional promoter of that law, to establish the consensus necessary to reach 
the stage of signature in 1977, and even more so to carry the effort through to 
ratification (now in more than 140 States). In each case, ratification was based 
on national decisions, formally closed to international coordination — although 
nevertheless subject to a certain extent to outside influences. 

The lesson which may be gleaned from the 1980 Convention on Certain 
Conventional Weapons is not very different. Developed as a side-result of the 
negotiations on the 1977 Protocols, the 1980 Convention was at first limited to 

129 



Role of Individuals 



a prohibition of particular means and methods of combat that were o{ no 
distinct operational importance. 19 The number of States parties to this 
Convention remained considerably low until the First Review Conference in 
1995 when the new Protocol IV on Blinding Laser Weapons of October 13, 
1995, was added, a remarkable, although limited, step towards new 
conventional rules. The revision of Protocol II on Prohibitions or Restrictions 
on the Use of Mines, Booby -Traps, and Other Devices on May 3, 1996, was an 
even more important second step, one supported by the international 
campaign against land mines. In this respect, the concerted efforts of many 
energetic players and the overwhelming evidence of excessive civilian 
casualties in more than a hundred States mobilized public opinion and soon led 
a considerable number of governments to change their position as to the 
desirability and extent of a prohibition. At the same time, this exceptional 
campaign illustrated that the creation of conventional law is uncertain even in 
the face of overwhelming public expectations. Successful efforts to prohibit 
certain uses of anti-personnel land mines have not been accompanied in all 
quarters by equally effective efforts toward a prohibition of production, 
stockpiling, and sale. Thus, the new Convention on the Prohibition of 
Landmines, which was opened for signature in Ottawa on December 3, 1997, 
did not gain the same initial support as the revised Protocol II in 1996. 
Furthermore, individual rights have not been stipulated in this context; the 
issue, however, may well be taken up later. 

Political commitments and a policy of "soft law" implementation in some 
States may facilitate such trends. But they cannot substitute for a solid and 
often cumbersome process of creating conventional legal rules based on 
reciprocity, careful implementation of existing law, and the exercise of 
sanctions against breaches. 

The relevant UN policy is still uncertain in many respects. While individual 
human rights were first addressed in the Charter and international instruments 
developed under the auspices of the World Organization, many solutions have 
remained rather erratic. New legal provisions remain subject to the political 
will of governments. Proposals developed within the United Nations 
Secretariat have to cope with this reality. Yet the responsibility o{ } and 
opportunities for, the UN to influence legal perceptions by offering relevant 
information and developing appropriate proposals should not be 
underestimated; they should be given full support by the member States. 

An important example in this respect is the 1994 Convention on the Safety 
of United Nations and Associated Personnel. Efforts to prepare this new 
convention did not go as far as consolidating and codifying international rules 

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Dieter Fleck 



suggested by the Secretary-General. 20 The Convention contains a few articles 
on certain fundamental obligations of States, balanced by provisions on the 
relevant obligations of such personnel. The solution found is not free from gaps 
and uncertainties. It is based on a considerable misunderstanding that Article 
2(2) of the Convention excludes UN operations authorized by the Security 
Council as enforcement actions under Chapter VII "in which any of the 
personnel are engaged as combatants against organized armed forces and to 
which the law of international armed conflict applies." Enforcement actions 
under Chapter VII should never be, and hence never be misinterpreted as, 
armed conflicts between the military forces involved. Rather, UN forces must 
be respected as enjoying immunity under Article 105 of the Charter and the 
general terms of the 1946 Convention on Privileges and Immunities of the 
United Nations. Their members may not be taken as prisoners of war; in the 
event they are detained, it would be absurd to suggest they should not be 
released before "the cessation of active hostilities" in accordance with Article 
118(1) of the Third Geneva Convention, the accepted rule for combatants in 
armed conflicts. Thus, the 1994 Convention does not meet important 
requirements of peace enforcement which led to its development. 21 

More successful, though considerably more controversial and time 
consuming, were efforts to establish the International Criminal Court (ICC). 
After several decades of discussion in various fora, this idea is now supported by 
the global consensus on the urgent need to establish the ad hoc tribunals for 
the former Yugoslavia and for Rwanda. A conference of States will be 
convened in 1998 to prepare the legal basis of the ICC in more concrete terms 
than ever before. The competence of the ICC will be limited to acts of 
genocide, crimes against humanity, war crimes, and wars of aggression. Its 
jurisdiction will be subsidiary; only cases that cannot be adjudicated by 
national courts because they are unable or unwilling to restore justice shall be 
brought to the International Tribunal. In this context, the extent to which a 
State Party to the planned ICC Statute may have to modify its national laws 
(e.g., concerning extradition of nationals) remains to be clarified. 22 
Jurisdiction over command responsibility issues will remain a complex 
subject. 23 Major efforts will be required to introduce rules of procedure that 
are not included in the statute, subject to further experience of the ICC. In 
this respect, the development of international rules of evidence will be of key 
importance. 24 

Once established, the permanent International Criminal Tribunal will be a 
great step forward to ensuring the rule of law as a prerequisite for internal 
security, social stability, and peaceful development. It will support justice 

131 



Role of Individuals 



where national judicial organs are failing. To build confidence on the part of 
the victims, to ensure legal balance, and avoid creating perceptions of victors' 
justice, a permanent international court is preferable to any ad hoc tribunal. 
The relationship between national and international jurisdiction should, 
however, be assessed in greater detail. Under what constraints should a State 
extradite its own nationals? Moreover, when should it extradite its own 
military personnel, who are subject to particular national order and discipline, 
and accountable to the highest political leadership? Are there limits to the ne 
bis in idem rule in cases where a national court has issued a sentence that at the 
international level might be considered too mild in comparison? How should 
cooperation between international and national judicial organs be developed? 

A thorough reassessment also appears to be necessary on the issue of 
individual claims. The 1LC Draft Articles on State Responsibility, adopted in 
1996, did not mention the individual as a bearer of rights and obligations at 
all. 25 Its Article 40 offers a very broad definition of the injured State, including 
even infringements of rights arising from a multilateral treaty or rules of 
customary international law in third States, anywhere on the globe, if it is 
established that "the right has been created or is established for the protection 
of human rights and fundamental freedoms." Thus, human rights violations in 
any part of the world would allow any State to consider itself as injured and 
entitled under Article 42 of the draft "to obtain from the State which has 
committed an internationally wrongful act full reparation in the form of 
restitution in kind, compensation, satisfaction and assurances and guarantees 
of non-repetition, either singly or in combination." Hardly any State, however, 
will defend claims of citizens of third States. If the individual victim himself 
could put claims forward against the author State and base his claim on 
international law rather than the national law of that State, reparations might 
be more effective. 

An excellent example of an expert proposal compiled in international 
cooperation to support lawmaking by States is the revised set of Basic 
Principles and Guidelines on the Right to Reparation for Victims of Gross 
Violations of Human Rights and Humanitarian Law prepared by Theo van 
Boven as Special Rapporteur of the UN Commission on Human Rights. 26 It 
starts from the principle that every State has the duty to respect, and to ensure 
respect for, human rights and humanitarian law. This obligation includes the 
duty to prevent violations, investigate violations, take appropriate action 
against violators, and afford remedies and reparation to victims. As stipulated 
by the Special Rapporteur, every State shall ensure that adequate legal or other 
appropriate remedies are available to any person claiming that his or her rights 

132 



Dieter Fleck 



have been violated. Reparation may be claimed by the direct victims or their 
immediate family. It includes restitution, compensation, rehabilitation, 
satisfaction, and guarantees of non-repetition. Restitution, which is designed 
to reestablish the situation that existed prior to the violations, shall include 
restoration of liberty, family life, citizenship, return to one's place of residence, 
and use of property. Compensation shall be provided for any pecuniarily 
assessable damage resulting from violations of human rights and humanitarian 
law, such as physical or mental harm, (including pain, suffering, and emotional 
distress) and lost opportunities (including education, material damages, and 
loss of earnings — including in turn loss of earning potential, harm to reputation 
or dignity, and costs required for legal or expert assistance). Rehabilitation 
shall be provided, and it will include medical and psychological care as well as 
legal and social services. Satisfaction and guarantees of non-repetition shall be 
provided, including, as necessary, cessation of continuing violations, 
verification of the facts and full and public disclosure of the truth; an official 
declaration or a judicial decision restoring the dignity, reputation, and legal 
rights of the persons connected with the victim; an apology, including public 
acknowledgement of the facts and acceptance of responsibility; judicial or 
administrative sanctions against persons responsible for the violations; 
commemorations and tributes to the victims; inclusion in human rights 
training and in history textbooks of an accurate account of the violations 
committed in the field of human rights and humanitarian law; and preventing 
the recurrence of violations — by such means as ensuring effective civilian 
control of military and security torces, restricting the jurisdiction of military 
tribunals to only specifically military offenses committed by members of the 
armed forces, strengthening the independence o{ the judiciary, protecting the 
legal profession and human rights defenders, and improving, on a priority basis, 
human rights training for all sectors of society, in particular for military and 
security forces, as well as for law enforcement officials. 

Acceptance of these draft principles and guidelines would progressively 
develop existing international law, which is still very far from providing full 
reparations in favor of individuals. In most situations, the right to reparation 
still rests within municipal legal orders; there are no other means of 
enforcement except under national law. 

International judicial mechanisms developed under the European and the 
American Conventions on Human Rights will hardly gain more than regional 
importance in this respect, although the interlinked mechanism of the 
European Commission and the European Court of Human Rights, which 
allows for a certain degree of individual complaint against infringements of 

133 



Role of Individuals 



fundamental freedoms, has been recommended as a model for other areas. 27 Of 
practical significance could be the relevant UN procedures in fora such as the 
United Nations Claims Commission (UNCC). In this respect, however, more 
experience still has to be collected. In addition to the fact that practice remains 
to be developed in administering funds on behalf of UN organs, State practice 
remains decisive for legal development. This practice will be influenced, but 
not exclusively governed, by general principles as shaped in legal writings over 
the centuries. 28 There is still no comprehensive concept of reparations in cases 
of breach of humanitarian law. Practical solutions remain rudimentary, and it 
must be admitted that full reparation can hardly be expected in any case, even 
those involving grave breaches o{ the law. 

Considering the issue in more general terms, and maybe in a longer time 
frame, however, allows for an overall picture in which legal principles are of clear 
relevance. The Martens clause, shaped into conventional law at the First Hague 
Peace Conference in 1899 and reaffirmed in the 1977 Additional Protocols to 
the Geneva Conventions, has been used to close legal lacunae and develop 
appropriate principles and rules in cases not covered by existing conventional 
law. Its reference to established custom, the principles of humanity, and the 
dictates of public conscience has provided arguments that have been seen as 
describing underlying principles for legal provisions and rules of conduct for 
States and international organizations. The relevance of these provisions and 
rules for legal and policy decisions has never been seriously disputed. The role of 
the media and its influence for international decision making has been very often 
enhanced by principles and attitudes which enjoy support in various quarters, 
even among people who disagree on many daily political issues. Backed by 
professional international institutions such as the ICRC, by relevant NGOs, and 
by academia, such principles are part of the process of law creation today, even in 
areas where there were different, or even no, rules at an earlier stage. This may 
lead to an application of legal rules developed for other purposes, in cases that 
had previously been considered quite different. 

Lawmaking by analogy is not a new idea. Lawyers tend to draw arguments 
from comparable situations, cases, and legal regulations. Vattel was convinced 
that the rules o( the natural law of nations can be derived by analogy from the 
natural law of man; 29 the opposite was, however, never common consensus. 
Rules of the law of nations have only limited influence on internal law. The 
differences in the responsibilities and interests involved are too great. 
Individuals can hardly compare their interests with group interests. It would be 
inappropriate to compare individuals with States; it may even remain an open 
question whether or not it is in the best interest of the individual to develop 



134 



Dieter Fleck 



rights (and duties) under international law independently from rights and 
duties of his or her home State. Yet individuals need protection against States, 
a requirement which is not limited to the relationship with their own State. 
This is so because today considerable ties, expanding in quantity and quality, 
exist between States and nationals of other States, requiring both sides to 
observe rules towards each other and making it necessary for individuals to 
claim rights on their own behalf without recourse to support from their home 
State. There is an evolving custom and indeed a developing legal opinio to 
prove the existence of such rights. ° 

This process has also affected the role of the individual in the development 
of law, its possible influence on decision making, and the interpretation of rules 
and their implementation. There are but rare exceptions to the principle that 
rules of international law are created by States and not by private individuals. 
But it should be remembered that States act through individual men and 
women as their representatives. These representatives are not only bound by 
instructions in performing their particular mission, but they very often actively 
develop positions that are approved by their superiors, even accepted without 
further deliberation. As are all individuals, government experts are subject to 
outside influences in a complex personal process of decision making. This is 
well accepted even by traditional law. The sources of international law 
enumerated in Article 38, paragraph 1 (a-c), of the Statute of the International 
Court of Justice reveal a certain role of the individual in the lawmaking process. 
Treaties and contracts may be concluded between States or international 
organizations and foreign private law persons. Customary law and general 
principles of law are based on man-made arguments, subject to confirmation by 
State practice. As subsidiary means for the determination of rules of 
international law, Article 38, paragraph 1(d), expressly refers not only to 
judicial decisions but also to "the teachings of the most highly qualified 
publicists of the various nations." The present information age may lead to a 
considerable increase in the influence of a large number of such persons. At the 
same time, the transparency of available information may also support 
mainstream trends in arguments and consideration of relevant State practice. 
Thus this development often contributes to practice-oriented, and less 
extravagant, results. 

Conclusions 

Even if the present assessment remains incomplete in various respects and is 
subject to further developments, there can be no doubt of the fact that 

135 



Role of Individuals 



individuals clearly have an active role to play as bearers of individual rights and 
obligations under international humanitarian law, or that individuals acting for 
States, international organizations, or even on their own enjoy considerable 
opportunity to participate in the development of that law. 

The many factors of human decision making require an interdisciplinary 
approach, one which includes ethical, cultural, technological, economic, and 
operational considerations. A complete assessment must be based on an array 
of different aspects. There is no guarantee, however, that objective criteria will 
be observed. Rather, the importance of policy constraints suggests that the 
degree to which particular aspects will be taken into due consideration and 
weighed against other aspects and requirements is undergoing rapid 
development. The role of legal advisors in this complex process of decision 
making is a delicate one. Weighing different interests exposes him or her to 
blame for wishful thinking; sticking to the more technical task of interpreting 
existing rules and provisions would offer less than might be rightly expected. 

Lawyers should stress the importance of policy constraints on military 
operations. It is their task to balance the rights and obligations of the operators 
in the field to ensure that they are fully informed about the relevant legal 
framework and that they fully use existing opportunities. This advisory task, 
however, has to be performed with a sense of proportion as regards the methods 
to be applied and the objective to be sought. It would be wrong to see the legal 
advisor solely in the role of post factum defender of the operator. Rather, he has 
to involve himself in the decision-making process, influence target selection, 
accept full responsibility for his advice, and develop the courage to dissuade 
others from excessive plans. 

As Rosalyn Higgins has suggested, international law is a process of 
authoritative decision making, not just the neutral application of rules. 31 This 
is especially true for rules of armed conflict law, which are based on policy 
considerations derived from the principle of distinction between civilian 
objects and military objectives, the avoidance of unnecessary suffering or 
superfluous injury, and the prohibition of acts of perfidy. The whole body of 
humanitarian law in armed conflicts is to be understood as a process of 
respecting and implementing these few principles. It is not a fixed set of bright 
line rules which can be applied irrespective of the factual context. To use 
Rosalyn Higgins's words, none of the problems explored can be satisfactorily 
resolved by confident invocation of a "correct rule." 

It is interesting to speculate how Admiral Stockton would have reacted to 
some of the modern challenges described in this contribution. He would 
probably have developed arguments and positions different from those he 

136 



Dieter Fleck 



chose in his time. But he would surely have done so with an attitude very 
similar to that for which he was well known by his contemporaries. Practical 
assessments, professionalism, and legal passion might have led him to personal 
initiatives in support of both national interests and the protection of the rights 
of individuals. 

It should be stressed that none of the many issues to be raised in this context 
can be solved without international cooperation. The existence of 
international rights and obligations depends on acceptance by more than one 
State. It is therefore not enough to draw on a particular national legal system. 
Rather, it is the international environment of individual action that also 
influences the legal assessment in a given context. 

Results in this continuing process will remain as incomplete and imperfect as 
nearly everything else in legal development. It remains difficult to make 
convincing assessments except in retrospect. Long-term effects often remain 
obscure, and anticipating objections which may arise at a later stage is risky by 
any standard. Thus developing humanitarian law remains as much a challenge 
for individual actors as for States and organizations authorizing, sponsoring, or 
supporting this task. 



Notes 



1. Partsch, Individuals in International Law, in 8 ENCYCLOPEDIA OF PUBLIC 

International Law 316-21 (Bernhardt ed., 1985). 

2. De Vattel, Le Droit des gens ou principes du droit naturel, 1 758, , bk. Ill, ch. 

XVIII, p. 238 (Edition Carnegie, 1916); REMEC, THE POSITION OF THE INDIVIDUAL IN 

International Law According to Grotius and Vattel (1960) . 

3. Higgins, Problems & Process: International Law and How We Use It 48-55 

(1994), rightly developed the argument that the whole notion of "subjects" and "objects" has no 
credible reality and no functional purpose, considering that individuals are participants, along 
with States and international organizations, of a dynamic process of international cooperation in 
which international legal obligations are implemented, remedies and sanctions exercised, and 
disputes settled. 

4- Similar efforts date back in the fifteenth century. See Green, War Crimes, Crimes against 
Humanity and Command Responsibility, NAVAL WAR COLL. REV., Spring 1997 at 26. 

5. 35(11) annuaire de l'institut de droit international 298 (1929). 

6. The Trial of Major War Criminals: Proceedings of the International 
Military Tribunal Sitting at Nuremberg Germany, pt. 22 (H.M.S.0. 1950), at 447. 

7. Thurer, Das Selbstbestimmungsrecht der Volker und die Anerkennung neuer Staaten, in 
Neues EuropAisches VOLKERRECHT NACH DEM ENDE DES OST-WEST-KONFLIKTES? 43-58 
(Neuhold & Simma eds., 1996). 

8. Case 26/62, van Gend & Loos, Feb. 5, 1963, ECR 3. See also Case 33/70 (1970). 

9. Aldrich, Individuals as Subjects of International Humanitarian Law, in THEORY OF 

International Law at the Threshold of the 21st Century: Essays in Honour of 

KRZYSTOFSKUBISZEWSKI851 (Makarczyk ed., 1996). 

137 



Role of Individuals 



10. I Oppenheim, International Law 848 (pt. 2-4) Oennings & Watts eds., 9th ed. 
1992). 

11. DoD Directive 5100.77, DOD LAW OF War PROGRAM, July 10, 1979, para. E-l; U.S. 
Navy, The Commander's Handbook on the Law of Naval Warfare (NWP 1-14M) 
(1995), para. 6.1.2; federal ministry of defence of germany, humanitarian law in 
Armed Conflicts— Manual, § 211 (1992). 

12. International Institute of Humanitarian Law, Declaration on the Rules of International 
Humanitarian haw Governing the Conduct of Hostilities in Non-International Armed Conflicts, INTL 

Rev. Red Cross, Sept.-Oct. 1990, at 404. 

13. Greenwood, Scope of Application of Humanitarian Law, in THE HANDBOOK OF 

Humanitarian Law in Armed Conflicts, § 211, para. 5 (Fleck ed., 1995). 

14. BVeriGE 94,315, 330 (decision of May 13, 1996). 

15. 333 U.N.T.S. 3; BGB1 1953 II 331. Art. 5, para. 2, of the London Agreement provided 
that "claims arising out of the Second World War by countries which were at war with or were 
occupied by Germany during that war, and by nationals of such countries, against the Reich and 
agencies of the Reich, including costs of German occupation, credits acquired during occupation 
on clearing accounts and claims against the Reichskreditkassen shall be deferred until the final 
settlement of the problem of reparation." The Treaty on the Final Settlement with respect to 
Germany of 12 September 1990 (BGB1 1990 II 1317) did not address reparations. 

16. Fleck, Implementing International Humanitarian Law — Problems and Priorities, INTL REV. 
RED CROSS, March-April 1991, at 140. 

17. Thurer, Humanitdt und Neutralitdt — zum politischen und vblkerrechtlichen 
Spannungsverhaltnis zweier Grundprinzipien der schweizerischen Aussenpolitik, in VOLKERRECHT IM 
DIENSTE DES MENSCHEN: FESTSCHRIFT FUR HANS HAUG 279, 307 (Hangartner & Trechsel eds., 
1986). 

18. Thurer, in THURER, HERDEGEN & HOHLOCH, DER WEGFALL EFFEKTIVER 
STAATSGEWALT: THE FAILED STATE, Berichte der Deutschen Gesellschaft fur Volkerrecht, 
1996, at 9-47. 

19. Differences of opinion on the military value of incendiary weapons, as affected (though 
not largely prohibited) by Protocol III of the Convention, may be of minor importance in this 
context. 

20. F3ourloyannis-Vrailas, The Convention on the Safety of United Nations and Associated 
Personnel 44 INT'L & COMP. L. Q. 560 (1995). 

21 . Fleck & Saalfeld, Combining Efforts to Improve the Legal Status of UN Peace-keeping Forces 
and their Effective Protection, INTL PEACEKEEPING, June- August 1994, at 82-S4- 

22. Penna, The International Criminal Court, 1 SINGAPORE J. INTL&COMP. L. 227 (1997). 

23. Green, War Crimes, Crimes against Humanity, and Command Responsibility, NAVAL WAR 
COLL. REV., Spring 1997, at 26-68. 

24- Dixon, Developing International Rules of Evidence for the Yugoslav and Rwanda Tribunals, 7 
TRANSNATLL. &CONTEMP. PROBS. 81 (1997). 

25. Report of the International Law Commission on the work of its forty-eighth session, 6 
May- 26 July 1996, G.A.O.R., 51st sess., supp. 10 (A/5110), at 125 (on the ILC Draft Articles) . 

26. E/CN.4/Sub.2/1996/17 (24 May 1996) (for the revised Basic Principles and Guidelines). 
See Report of the UN Secretary-General (E/CN.4/1997/29) and Commission on Human Rights 
Resolution 1997/29. 

27. Dinstein, The Implementation of International Human Rights, in RECHT ZWISCHEN 
UMBRUCH UND BEWAHRUNG. FESTSCHRIFT FUR RUDOLF BERNHARDT 353 (Beyerlin et al. eds., 
1995). 



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Dieter Fleck 



28. Green, Enforcement of the Law in International and NonAntemational Conflicts — The Way 
Ahead, 24 DENVER J. INT'L L. &POLT 285 (1996). 

29. REMEC, supra note 2, at 128. 

30. Meron, Human Rights and Humanitarian Norms as Customary Law (1989). 
Hannikainen, Peremptory Norms Qvs Cogens) in International Law ; Historical 
Development, Criteria, Present Status (1988). 

31. HlGGINS, supra note 3, at 267. 






139 



140 



VI 



What Is— Why Is There 
the Law of War? 



Leslie Green 



w 



RITING IN 1832, Clausewitz maintained that: 



[T]o impose our will on the enemy is [the] object of force. . . . The fighting 
force must be destroyed: that is they must be put in such a condition that they can no 
longer carry on the fight.. . . War is an act of force, there is no logical limitation to 
the application of force. . . . Attached to force are certain imperceptible limitations 
hardly worth mentioning, known as international law and custom, hut they scarcely 
weaken it. ... [In fact,] kind-hearted people might . . . think there was some 
ingenious way to disarm or defeat an enemy without too much bloodshed, and 
might imagine that is the true goal of the art of war. Pleasant as it sounds, it is a 
fallacy that must be exposed: war is such a dangerous business that the mistakes 
which come from kindness are the very worst. . . . [However,] if civilized nations 
do not put their prisoners to death or devastate cities and countries, it is because 
intelligence plays a larger part in their methods [than was the case among 
savages] and has taught them more effective ways of using force than the crude 
expression of instinct. 1 

In response to this assertion, it might be said that the very "intelligence" to 
which he refers as playing a larger part in the methods of warfare, in fact 
expresses itself in the very rules of international law and custom which he 



The Law of War 



cynically derides as "hardly worth mentioning." As if to confirm this, reference 
may be made to the comment by General Colin Powell when submitting his 
report to the United States Congress on "The Role of the Law of War" during 
Operation DESERT STORM. In opening, the general stated, "Decisions were 
impacted by legal considerations at every level, [the law of war] proved 
valuable in the decision-making process." 2 

Before we can legitimately comment on the issue of legal control — the jus in 
hello — it is necessary to pay some attention to the lawfulness of war itself — the 
jus ad helium. In earlier times this meant deciding whether the war was being 
fought for a "just" cause, a characterization largely dependent on whether the 
war received the approval of the church. 3 In accordance with the views of 
Machiavelli, this soon came to mean that any war in which a Christian prince 
was engaged was obviously "just" 4 and "a necessary war is a just war," 5 while the 
"fathers" of international law sought to set out a variety of causes which would 
enable a ruler — justly — to resort to the use of force, normally in the name of 
self-defense. With the rise of socialism and the workers' movement, the 
concept of "justness" shifted, so that the only "just war" was the "class war." 
However, in practice this was shown to be nothing but an ideology, for with but 
few exceptions even the "workers" were prepared to defend their country when 
it was a victim of aggression. 

The first international steps towards declaring war illegal came with the 
adoption of the Covenant of the League of Nations. 6 While this did not 
expressly ban war, it sought to limit the occasions on which a League member 
could resort to force. In accordance with Article 16, "should any Member of 
the League resort to war in disregard of its covenants . . . , it shall ipso facto be 
deemed to have committed an act of war against all Members of the League," 
thereby laying itself open to the imposition of economic sanctions. In practice, 
as demonstrated in, for example, the Italo-Ethiopian war, this did not really 
amount to a great deal. The practical difficulty of forbidding war and making 
resort thereto an offense against international law may be seen in the fate of the 
draft Treaty of Mutual Assistance drawn up by the League Assembly in 1923. 7 
This solemnly proclaimed "that aggression is an international crime," with the 
parties undertaking that "no one will be guilty of its commission." The 
"criminal" penalty envisaged was purely financial. Since it proved impossible to 
define "aggression," the treaty remained a draft. The same fate befell the 1924 
Draft Treaty of Disarmament and Security. 8 Equally abortive was the League's 
Geneva Protocol for the Pacific Settlement of International Disputes of 1924. 
By this, "a war of aggression constitutes a violation of [the] solidarity [of the 

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Leslie Green 

members of the international community] and an international crime; . . . and 
[with a view to] ensuring the repression of international crimes" the parties 
forswore war save by way of "resistance to acts of aggression or when acting in 
agreement with the Council or the Assembly of the League of Nations in 
accordance with provisions of the Covenant and of the present Protocol." As 
with earlier exercises, there was no provision for criminal liability, other than 
financial sanctions. The same is true of the various hortatory or declaratory 
resolutions to similar effect adopted by both the League Assembly or the 
Conference of American States. This did not, however, inhibit the 
International Military Tribunal at Nuremberg from resting part of its finding 
that aggressive war was criminal at international law on these non-binding 
instruments. 1 

It was not until Secretary of State Frank Kellogg of the United States and 
Foreign Minister Aristide Briand of France proposed the agreement which 
carries their names, officially the Pact of Paris for the Renunciation o{ War, 
that any treaty dealing with the "legality" of war was adopted. The 1928 Pact 
was somewhat simple in its terms, merely stating that the High Contracting 
Parties — by the outbreak of World War II this included almost all independent 
States — "condemn recourse to war for the solution of international 
controversies, and renounce it as an instrument of national policy [and] agree 
that the settlement of or solution of all disputes or conflicts of whatever nature 
or of whatever origin they may be, which may arise among them, shall never be 
brought about except by peaceful means." 11 

The sole sanction indicated in the Pact is denial of the benefits provided by 
it to the offender. An appreciation of what this might mean is to be found in the 
Articles of Interpretation adopted by the International Law Association at its 
Budapest meeting in 1934. 12 Having stated the obvious, that a party resorting 
to armed force to solve an international dispute "is guilty of a violation of the 
Pact," as is any State assisting such a violator, the Articles go on to provide that 
a victim of such a violation, as well as all other signatories, "may" — not 
"shall" — deny the violator all the rights of a belligerent. Signatories are also 
excused from any of the normal obligations attaching to neutrality, so that they 
would be entitled to assist the victim with finances, supplies, and even armed 
forces. Equally, the aggressor would not be entitled to receive recognition 
either de facto or dejure of any territorial or other advantage ensuing from the 
aggression. Finally, the aggressor would be liable to pay compensation for all 
damage incurred by any party as a result of the breach. 

It is noticeable that the Budapest Articles of Interpretation say nothing 
about the criminality of an act of aggression in breach o( the Pact. 

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The Law of War 



Nevertheless, the Nuremberg Tribunal apparently found no difficulty in 
asserting that "the solemn renunciation of war as an instrument of national 
policy [in the Pact] necessarily involves the proposition that such a war is 
illegal in international law; and that those who plan and wage such a war . . . are 
committing a crime in so doing. . . . War [is] essentially an evil thing. Its 
consequences are not confined to the belligerent states alone, but affect the 
whole world. To initiate a war of aggression, therefore, is not only an 
international crime; it is the supreme international crime differing only from 
other war crimes in that it contains within itself the accumulated evil of the 
whole." 13 

This statement calls for comment. In the first place, the Tribunal has 
ignored the fact that not every breach of an agreement — or even of 
legislation — constitutes a crime. Second, the interpretation of the Pact in this 
way is completely gratuitous and unnecessary. By Article 6 (a) of the London 
Charter establishing the Tribunal, among the crimes against peace over which 
the Tribunal is granted jurisdiction is "planning, initiation or waging of a war of 
aggression, or a war in violation of international treaties. . . ." It follows, 
therefore, that it is the constituent instrument of the Tribunal which has 
rendered criminal a war of aggression or breach of the Pact, which is merely an 
"international treaty." It was thus completely redundant for the Tribunal to go 
into any detailed study of draft or other documents to ascertain whether such a 
war was criminal or not. 

Not even the Charter of the United Nations, at least not expressis verbis, 
speaks of the criminality of war. Article 2, paragraphs 3 and 4, simply provide 
that "all Members shall settle their international disputes by peaceful means 
in such a manner that international peace and security, and justice, are not 
endangered. [They] shall refrain in their international relations from the 
threat or use of force against the territorial integrity or political independence 
of any state, or in any other manner inconsistent with the Purposes of the 
United Nations." The only clear sanction should these commitments be 
ignored depends on the Security Council and its decision to invoke the 
provisions in Chapter VII relating to a threat to the peace, a breach of the 
peace, or an act of aggression. Should the Council authorize military action in 
such circumstances, those complying with the decision are not in breach of 
any legal requirement. Other than this, the only recourse to armed conflict 
that is permitted under the Charter is by way of self-defense against an armed 
attack. Other recourse to arms would constitute an act of aggression and a 
crime in the light of the Nuremberg judgment, for the General Assembly has 
affirmed the Principles of International Law Recognized by the Charter of the 



144 



Leslie Green 

Nuremberg Tribunal, 14 and authorized the International Law Commission to 
draw up a Statement of Principles Recognized in the Charter of the 
Nuremberg Tribunal and in the Judgment of the Tribunal; 15 these Principles 
are now generally regarded as constituting part of international customary 
law. 

Even if it is claimed that a resort to arms is in accordance with Article 51 of 
the Charter, problems may arise as to whether the claim is justified and 
self -defense legally resorted to. By Article 51, it may only occur in response to 
an armed attack. However, the article describes the right as being "inherent," 
which raises the question whether it may be resorted to by way of preventive or 
anticipatory action, 16 since it is hardly likely that the draftsmen of the Charter 
intended a "victim" to wait until it was, for example, devastated by nuclear 
attack before taking steps to defend itself. Moreover, since the right is 
"inherent," 17 it cannot be presumed that the members of the United Nations 
have less right to defend themselves than do non-members. War, other than 
under these conditions, would constitute aggression and thus amount to an 
international crime in accordance with the exposition of the law as given at 
Nuremberg. If war is illegal and criminal, say the cynics, how can one speak of 
the law of war? Is not this completely out of line with the normal rules 
concerning criminal law? It is not usual to declare a particular act to be a crime 
and then lay down rules as to how that crime is to be committed. Such an 
approach, however, betrays a lack of historical knowledge and any appreciation 
of the purpose o( the law of war. 

Even in the Old Testament there are instances of the significance of 
restraints on the conduct o{ war. During their conquest of Canaan, the 
Israelites conducted many campaigns of total destruction, but this only 
happened when the war in which they were engaged was undertaken at the 
direct order of God and directed against heathens who had rejected Him. To 
show mercy would be a sin against the Lord. 18 Even in such a war, however, 
they were exhorted to have recourse to siege only if the city involved had 
rejected an opportunity to surrender. 

When thou comest nigh unto a city to fight against it, then proclaim peace 
unto it. And ... if it make thee answer of peace, and open unto thee, then ... all 
the people that is found therein shall be tributaries unto thee. And if it will make 
no peace with thee, but will make war against thee, then thou shalt besiege it. 
And when the Lord thy God hath delivered it into thine hands, thou shalt smite 
every male thereof with the edge of the sword: But the women, and little ones, 
and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take 
unto thyself; and thou shalt eat the spoil of thine enemies. . . . When thou shalt 

145 



The Law of War 



besiege a city a long time in making war against it to take it, thou shalt not 
destroy the trees thereof by wielding an axe against them; for thou mayest eat of 
them, but thou shalt not cut them down; for is the tree of the field man, that it 
shall be besieged of thee? Only the trees of which thou knowest that they are not 
trees for food, them thou mayest destroy and cut down, that thou mayest build 
bulwarks against the city that makes war with thee, until it fall. 19 

It would appear, therefore, that ecological considerations were significant 
even then, forbidding destruction of resources essential to the survival of man. 
Maimonides, perhaps the greatest of Jewish Diaspora scholars, states that the 
destruction of fruit trees for the mere purpose of afflicting the civilian 
population is prohibited, and Rabbi Ishmael goes so far as to state that "not only 
fruit trees but, by argument from minor to major, stores of fruit itself may not be 
destroyed." 20 

Not until Protocol I annexed to the Geneva Conventions of 1949 was 
adopted in 1977 was a similar principle embodied in the international 
black-letter law of armed conflict. Even then, "objects indispensable to the 
civilian population" may not be attacked or destroyed, unless they "are used . . . 
as sustenance solely for the members of [the adverse party's] forces ... or in 
direct support of military action," but in the latter case care must be taken to 
ensure that the civilian population is not left "with such inadequate food or 
water as to cause its starvation or force its movement." 21 

The Israelites were also enjoined to restrain themselves in their dealings 
with enemy combatants. Thus, "rejoice not when thine enemy falleth, and let 
not thine heart rejoice when he stumbleth; lest the Lord see it, and it 
displeases Him, and He turn away His wrath from him." 22 Moreover, insofar 
as prisoners of war are concerned, "if thine enemy be hungry, give him bread 
to eat; and if he be thirsty, give him water to drink." This injunction goes so 
far as to inspire the prophet Elisha to reply to the king's inquiry whether he 
might kill his prisoners: "Thou shalt not smite them: wouldest thou smite 
those whom thou hast taken captive with thy sword and with thy bow? Set 
bread before them, that they may eat and drink and go to their master. And 
he prepared great provision for them: and when they had eaten and drunk, he 
sent them away and they went to their master." 24 Even in those instances 
when the Torah or the Prophets indicated that extreme action be taken 
against an enemy, 

the rabbis softened the impact of much of the old law through reinterpretation or 
imaginative explanation. Due to this it seems that the Israelites were indeed a 
"merciful" people when compared with their neighbors, such as the Assyrians. 

146 



Leslie Green 

Although, as in any case, exceptions and violations to regulations occurred, on 
the whole, the Israelite warriors conducted themselves in a disciplined, restricted 
manner in accordance with rules and regulations derived from divine 
inspiration. 24 

However, breaches of these irijunctions were, for the main part at least, only 
subject to divine punishment. 

The Israelites were not alone among the ancients whose conduct of war was 
under restraints. Sun Tzu, in his The Art of War, is one of the most ancient 
commentators on warfare, and in his view, "Generally in war the best policy is 
to take a state intact; to ruin it is inferior to this. To capture the enemy's army is 
better than to destroy it; to take intact a battalion, a company or a five -man 
squad is better than to destroy them. . . . To subdue the enemy without fighting 
is the acme of skill. . . . The worst policy is to attack cities. Attack cities only 
when there is no alternative." 25 Even as early as the seventeenth century B.C., 
the Chinese were applying what may only be described as principles of chivalry 
when engaged in conflict, it being "deemed unchivalrous ... [to take] 
advantage of a fleeing enemy who was having trouble with his chariot ... [or 
to] attack an enemy state . . . when it was divided by internal troubles." 26 

Similarly, some measures of humanitarianism are to be found in both the 
Ramayana 11 and the Mahabharata, 18 postulating a series of principles regulating 
conduct in war, many of which have only recently been accepted as part of the 
modern law of war: "When he fights his foes in battle, let him not strike with 
weapons concealed in wood, nor with such as are barbed, poisoned, or the 
points of which are blazing with fire. 29 Neither poisoned nor barbed weapons 
should be used. These are weapons of the wicked." 30 Foretelling the modern 
rule relating to proportionality, 31 as well as the ideological — and 
unrealistic — view of those who assert that sophisticated weapons should not be 
used against unsophisticated peoples, 

A car warrior should fight a car warrior. One on horse should fight one on horse. 
Elephant riders must fight with elephant riders, as one on foot fights a foot 
soldier. When the antagonist has fallen into distress he should not be struck: 
brave warriors do not shoot at one whose arrows are exhausted. No one should 
strike another that is retreating. 32 . . . [L]et him remember the duty of honourable 
warriors; do not kill a man when he is down, even a wicked enemy, if he seeks 
shelter, should not be slain. 

The Sanskrit writers, in their treatment of noncombatants, remind us of the 
remark attributed by Shakespeare's Henry V to Fluellen at Agincourt in 1415: 

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The Law of War 



"Kill the boys and the luggage! Tis expressly against the law of arms: 'tis as 
arrant a piece of knavery as can be offer'd." 33 These early epics warn us that: 

[C]ar-drivers, men engaged in the transport of weapons, . . . should never be 
slain. No one should slay him who goes out to procure forage or fodder, camp 
followers or those that do menial service. No one should kill him that is skilled in 
a special art. He is no son of the Vishni race who slayeth a woman, a boy or an old 
man. Let him not strike one who has been grievously wounded. A wounded 
opponent shall either be sent to his own home, or if brought to the victor's 
quarters, have his wounds attended to, and when cured he shall be set at liberty. 
This is eternal duty. 34 Night slaughter is horrible and infamous. With death our 
enmity has terminated. 

Thus, any desecration of a corpse, such as taking of ears or other mementos, 
was forbidden. Finally, as to the treatment of occupied territory and its 
inhabitants, "Customs, laws and family usages which obtain in a country should 
be preserved when that country has been acquired. Having conquered the 
country of his (ot, let him not abolish or disregard the laws of that country. A 
king should never do such injury to his foe as would rankle in the latter's 
heart." 35 

It becomes evident from these examples that many of the rules of the 
ancients go further than what is to be found in either the Hague or the Geneva 
law. 36 They indicate that the ancients considered war an unfortunate 
occurrence, with the ensuing damage to be kept to a minimum and every effort 
made to secure a peaceful and fruitful future for both the victor and the 
vanquished. This interpretation accords with that of Gibbon commenting on 
the behaviour of the Scythians in the fifth century, 

In all their invasions of the civilized empires of the South, the Scythian 
shepherds have been uniformly actuated by a savage and destructive spirit. The 
laws of war that restrain the exercise of national rapine and murder, are founded 
on two principles of substantial interest: the knowledge of the permanent 
benefits which may be obtained by a moderate use of conquest; and a just 
apprehension lest the desolation which we inflict on the enemy's country may be 
retaliated on our own. But these considerations of hope and fear are almost 
unknown in the pastoral state of nations. 37 

One is sometimes caused to wonder whether they are any more known or 
applied in industrial States! 

Long before the period to which Gibbon was referring, there was some 
regulation of what was allowed during war. This becomes clear if one looks to 

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Leslie Green 



the practice of ancient Greece and Rome, in which urban centers in the form of 
cities, and city-states were well established. A leading commentator has said, 

The rule and principles of war were considered by both Hellas and Rome to be 
applicable only to civilized sovereign States properly organized, and enjoying a 
regular constitution; and not conglomerations of individuals living together in 
an irregular and precarious association. Rome did not regard as being within 
the comity of nations such fortuitous gatherings of people, but only those who 
were organized on a civilized basis, and governed with a view to the general 
good, by a properly constructed system of law. . . . Hence barbarians, savage 
tribes, bands of robbers and pirates, and the like were debarred from the 
benefits and relaxations established by international law and custom. . . . [A]s 
to the general practice of war in Hellas[,l we find remarkable oscillations of 
wartime policy. Brutal treatment and noble generous conduct are manifested 
at the same epoch, in the same war, and apparently under similar 
circumstances. At times we hear of proceedings which testify to the intellectual 
and artistic temperament of the Greeks; at other times, we read narratives 
which emphasise the fundamental cruelty and disregard of human claims 
prevalent amongst the ancient races when at war with each other. In Homer . . . 
hostilities for the most part assumed the form of indiscriminate brigandage, and 
were but rarely conducted with a view to achieving regular conquests, and 
extending the territory of the victorious community. Extermination rather 
than subjection of the enemy was the usual practice. . . . Sometimes prisoners 
were sacrificed to the gods, corpses mutilated and mercy refused to children, 
and to the old and sickly. On the other hand, acts of mercy and nobility were 
frequent. . . . The adoption of certain cowardly, inhuman practices, such as, for 
example, the use of poisoned weapons, was condemned. . . . J8 In reference to 
the conduct of war in Greece, it is important to remember that it was between 
small States, whose subjects were to an extraordinary degree animated by 
patriotism and devotion to their mother-country, that every individual was a 
soldier-politician who saw his home, his life, his family, his gods, at stake, and, 
finally, that he regarded each and every subject of the opposing States as his 
personal adversary. . . . 39 [Nevertheless,] temples, and priests, and embassies 
were considered inviolable. . . . Mercy was shown to . . . helpless captives. 
Prisoners were ransomed and exchanged. Safe-conducts were granted and 
respected. Truces and armistices were established and, for the most part, 
faithfully observed. . . . Buriai of dead was permitted; and graves were 
unmolested. It was considered wrong and impious to cut off or poison the 
enemy's water supply, or to make use of poisoned weapons. Treacherous 
stratagems of every description were condemned as being contrary to civilized 
warfare. And ... it is essential to emphasize that the non-existence of the law 
and universally accepted custom relating to them is not necessarily proved 
when we point here and there to conduct of a contrary nature. 40 



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The Law of War 



This latter point is not always sufficiently acknowledged in our own time. 

The same commentator goes on to point out that by the time of the Roman 
empire the nature of the State had changed with Rome a centralized authority. 
Now, the practices in war 

varied according as their wars were commenced to exact vengeance for gross 
violations of international law, or for deliberate acts of treachery. Their warlike 
usages varied also according as their adversaries were regular enemies ... or 
uncivilized barbarians 41 and bands of pirates and marauders. . . . The Roman 
conduct [under Germanicus] far transcended in its civilized and humane 
character that of the German leader, Arminius, who is reported [by Tacitus 42 ] to 
have burnt to death and otherwise barbarously 43 slain the centurions and 
tribunes of the Varian legions, and nailed their skulls to trees. Undoubtedly, the 
belligerent operations of Rome, from the point of view of introducing various 
mitigations in the field, and adopting a milder policy after victory, 44 are distinctly 
of a progressive character. They were more regular and disciplined than those of 
any other ancient nation. They did not as a rule degenerate into indiscriminate 
slaughter and unrestrained devastation. The ins belli imposed restrictions on 
barbarism, and condemned all acts of treachery. . . . [Livy tells us 45 ] there were 
laws of war as well as peace, and the Romans had learnt to put them into practice 
not less justly than bravely. . . . The Romans [says Cicero 46 ] refuse to 
countenance a criminal attempt made on the life of even a foreign aggressor. 47 

In so far as Islam is concerned, the Caliph Abu Bakr commanded his troops, 
"[L]et there be no perfidy, no falsehood in your treaties with the enemy, be 
faithful to all things, proving yourselves upright and noble and maintaining 
your word and promises truly." 48 The ninth century Islamic statement on the 
law of nations bans the killing of women, children, the aged, the blind, the 
crippled and helpless insane. 49 Moreover, while fighting was in progress 
between the dar aUlslam (the territory of Islam) and the dar al-harb (the rest of 
the world, also known as the "territory of war"), "Muslims were under legal 
obligations to respect the rights of non-Muslims, both combatants and 
civilians." Booty did not belong to the captor but was to be shared according to 
set rules. "The prisoner of war should not be killed, but he may be ransomed or 
set free by grace," although if it would be advantageous to the Muslims, 
non-Muslim prisoners could be killed unless they converted, when they would 
be regarded as booty. 50 

Once we come to the age of chivalry, we find the role of the Church 
significant, particularly as it frequently reflected the desires of the orders of 
knighthood. Thus, the condemnation of the use of the crossbow and the arc by 
the Second Lateran Council in 1139 coincided with the views of the knightly 

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orders who fought hand-to-hand and considered such weapons disgraceful 
since they could be used from a distance by an unseen foe, including villians, 
who could strike without the risk of being struck himself. 51 The axe, mace, 
halberd, ball-and-chain, military fork, and a variety of lances used by the 
knights for close combat and dismounting an opponent were merely up-to-date 
variants of the striking weapons of the ancients, which had been "confined to 
arm, foot, or mouth-propelled instruments [as well as] war-hammers, 
battle-axes, and swords; thrusting spears; and missile weapons, such as the 
hurled spear, or javelin, the arrow propelled by arm- or foot-drawn bow, or the 
blow-pipe. The striking edge or point of these weapons [had been] of hard 
wood, stone, bone, or metal." 52 

As iron-clad warriors 53 disappeared, their specialized weapons fell into 
desuetude; they are now considered illegal. The process of condemnation and 
potential rejection was assisted by the Church, anathemizing such weapons as 
darts and catapults "in order to reduce as far as possible the engines of 
destruction and death." 54 Despite the condemnation of weapons causing 
numerous deaths, gunpowder was soon in common use, although in 1439, 
"when the army of Bologna, using a new handgun, killed a number of 
plate-armoured Venetians, feeling ran so high at this disregard for the game of 
war, that the victorious Venetians massacred all prisoners who had stooped so 
low as to use this 'cruel and cowardly innovation,' gunpowder. It would, if 
unchecked, they said, make fighting a positively DANGEROUS profession." 55 
Such disregard of the rules led Belli to comment a century later that "today 
regard is so far lacking for this [Church] rule that firearms of a thousand kinds 
are the most common and popular implements of war, as if too few avenues of 
death had been discovered in the centuries, had not the generations of our 
fathers, rivaling God with his lightning, invented this means whereby, even at a 
single discharge, men are sent to perdition by the hundreds." 56 

The "law of chivalry" was nothing but a customary code of chivalrous 
conduct recognized by the feudal knights as controlling their affairs. 57 This was 
enforced by arbitrators specially appointed and even by Courts of Chivalry. 58 
As early as 1307, such courts were trying breaches of parole, 59 considered a 
major disregard of the "law of arms" — a system so well recognized that when in 
1370 at the siege of Limoges the English commander issued orders forbidding 
quarter, three captured French knights appealed to John of Gaunt and the Earl 
of Cambridge, "My Lords we are yours: you have vanquished us. Act therefore 
to the law of arms." Their lives were spared, and they were treated as prisoners 
who could, of course, be ransomed. 60 The principles of the law of arms were 
sufficiently well recognized by the time of Elizabeth that, as has already been 

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The Law of War 



pointed out, Shakespeare could make specific reference to them when writing 
of Henry V's conduct at Agincourt. 61 

By the middle of the fifteenth century, the Constable of France was trying a 
variety ofecorcheur captains for war crimes. 62 Perhaps more significant was the 
1474 trial by a tribunal made up of representatives of the Hanseatic cities of 
Peter of Hagenbach for administering occupied territory in a manner "contrary 
to the laws o( God and of man." His plea that he had been carrying out the 
orders of his lord was rejected, and he was executed. 63 

The rules of chivalry did not apply to the ordinary foot soldier, whose 
conduct was regulated by national military codes giving commanders the 
"rights of justice" over miscreants. Thus, the 1385 code of Richard II o{ 
England forbade pillage of the church, victuals, provisions, or forage; also, 
among other things it provided for parole by prisoners, who were not to be 
considered property of their captors, but of the king. 64 By the fifteenth century, 
when nearly all men-at-arms were included in official musters, subject to 
disciplinary codes of this kind, enforcement of the law became easier. By the 
seventeenth century most of the countries of Europe had such codes forbidding 
violence against women, marauding of the countryside, individual acts against 
the enemy unless authorized by a superior, private taking or keeping of booty, 
or the private detention of any prisoner. 65 Of these codes it has been said that 
together with the rules of international law, they constitute "Ie meilleur frein 
pratique pour imposer aux armees le respect d'un modus legitimus de mener les 

»66 

guerres. 

As to the position of women, the French knights had been adamant in 
protecting the modesty of those found in surrendered cities, and Coligny made 
violence against them punishable by death. 67 By the beginning of the 
seventeenth century the honor of women was so well established that Gentili 
could state that "to violate the honour of women will always be held to be 
unjust," quoting as evidence the view of Alexander, "I am not in the habit of 
warring with prisoners and women." 68 This would suggest that the rape of 
women has from earliest times been considered a war crime. Moreover, in the 
Lieber Instructions for the Government of the Armies of the United States in 
the Field, 1863, which formed the basis of most subsequent military codes, 
express provision is made, with respect to providing protection of inhabitants 
in occupied territories, for the protection of women. 69 In 1974, the General 
Assembly Declaration on the Protection oi Women and Children in 
Emergency and Armed Conflict provided that "all forms of repression and 

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inhuman treatment of women . . . committed by belligerents in the course of 
military operations or in occupied territories shall be considered criminal." 70 
More recently, 1977 Protocol I annexed to the 1949 Geneva Conventions 
expressly states, "Women shall be the object of special respect and shall be 
protected in particular against rape, forced prostitution and any other form o{ 
indecent assault." 71 This series of provisions leads one to question the integrity 
and purpose of those feminists who now seek to have rape specifically declared 
a war crime, particularly since it has been charged as such in many of the 
indictments issued by the Ad Hoc Tribunal for the former Yugoslavia. 

In earlier days, combatants were not over-concerned with the fate of the 
wounded, particularly those belonging to an enemy, and this was especially so 
during the religious campaigns of the Crusades. Nevertheless, by the twelfth 
century the knights of the Order of St. John had established a hospital in 
Jerusalem for the care of the sick and injured, and by the sixteenth century they 
had established themselves as the Sovereign Order of Malta with the same 
purpose in mind. About the same time, writers were beginning to assert that 
doctors, who were often in clerical orders, enjoyed a special immunity. In the 
early part of the fourteenth century Bartolus maintained they were free from 
seizure, and Belli used this as a basis for stating that during war, the "persons of 
doctors may not be seized, and they must not be haled to court or otherwise 
harassed." 7 By the time of Louis XIV, attention had been directed to providing 
for the care of the wounded; in a 1708 decree a permanent medical service was 
established u d la suite des armees et dans les places de guerre" 13 During the siege of 
Metz in 1552-1553 Francois de Guise summoned the French surgeon 
Ambroise Para "to succour the abandoned wounded soldiers oi the enemy and 
to make arrangements for their transport back to their army" 74 — a practice not 
embodied into treaty law until three centuries later. 75 

During later conflicts, a variety of reciprocal arrangements were made for 
the care of the wounded, of which only one or two need be mentioned. 

[The] convention made in 1743, between Lord Stair on behalf of the Pragmatic 
army and the Marshal Noailles for the French during the Dettingen campaign 
bound both sides to treat hospitals and wounded with consideration. Noailles, 
when he felt that his operations might cause alarm to the inmates of the hospitals 
at Techenheim, went so far as to send word that they should rest tranquil as they 
would not be disturbed. A fuller and more highly developed type of agreement 
was signed at L'Ecluse in 1759 by the Marshal de Baril, who commanded the 
French, and Major-General Conway, the British general officer commanding. 
The hospital staff, chaplains, doctors, surgeons and apothecaries were not ... to 
be taken prisoners; and if they should happen to be apprehended within the lines 

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of the enemy, they were to be sent back immediately. The wounded of the enemy 
who should fall into the hands of their opponents were to be cared for, and their 
food and medicine should in due course be paid for. They were not to be made 
prisoner and might stay in hospital safely under guard. . . . Peyrilhe in 1780 
proposed international recognition of the principle that the wounded should not 
be made prisoners of war and should not enter into the balance of exchanges. 76 

It was not, however, until after Dunant's Souvenir ofSolferino in 1862 that this 
form oiad hoc arrangement received permanence and international recognition 
by way of the establishment of the International Committee of the Red Cross. 77 

The Middle Ages saw other customs developing which have ceased to be of 
topical importance, although in some instances they have been responsible for 
current practices. During the Hundred Years War it was possible to distinguish 
between guerre mortelle } war to the death; bellum hostile, a war between 
Christian princes in which prisoners could ransom themselves; guerre 
guerriable, fought in accordance with the feudal rules of chivalry; and the truce, 
which indicated a temporary cessation of hostilities during which the wounded 
and dead might be collected. Any resumption of actual fighting following a 
truce was considered a continuation of an ongoing conflict rather than 
commencement of a new one — an attitude which applies at present with 
regard to the relations between Israel and those of her Arab neighbors with 
whom no peace treaty has yet been signed. Each category of conflict had its 
own rules, but they were rules of honor rather than of law or humanitarianism. 
Unless it was a conflict in which no quarter was to be given — and this was 
indicated by raising a red pennant 78 — prisoners and others enjoying immunity, 
such as heralds, carried a white wand or even a white paper in their 
head -dress — is this the origin of the white flag? — and were frequently allowed 
freedom of movement under safe-conducts or were employed as messengers 
between the contending forces. 79 

In order to appreciate the reasons for and nature of the law of war, it is not 
enough just to look to the practices of the Middle Ages. Reference must also be 
made to the writings of the classical writers on international law, for to the 
extent that these were consistent or expressed commonly held views prevalent 
at the time, their writings constitute evidence of customary law. Thus, in words 
which are almost modern, Gentili wrote, 

[I] n war . . . victory is sought in no prescribed fashion. . . . Our only precaution 
must be not to allow every kind of craft and every kind of cunning device; for evil 
is not lawful, but an enemy should be dealt with according to law. ... In dealing 

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with a just and lawful enemy we have the whole fetial law and many other laws in 
common. . . . Necessity does not oblige us to violate the rights of our adversaries . 
. . [but] the laws of war are not observed toward one who does not observe 
them." 80 

This latter statement is of course not valid today, at least insofar as the 
Geneva principles are concerned. 

Grotius, commonly (though wrongly) described as "the father of 
international law," is somewhat self-contradictory. First, he states that "by the 
Law of Nations any Thing done against an Enemy is lawful ... It is lawful for an 
Enemy to hurt another both in Person and Goods . . . [and for] both sides to do 
so without Distinction." 81 However, later, when discussing Moderation 
concerning the Right of Killing Men in a Just War, he states that "there are 
certain Duties to be observed even toward those who have wronged us" 82 and 
calls for avoidance of useless fighting, which is "wholly repugnant to the Duty 
of a Christian, and Humanity itself. Therefore all Magistrates ought strictly to 
forbid these Things, for they must render an account for the unnecessary 
shedding of Blood to him, whose Viceregents they are." 83 

Having pointed out that the man in the field is forbidden from acting as if 
the conflict were a private affair and so is neither to keep captured property for 
himself nor commit warlike acts after a retreat or an armistice, 84 he continues: 

It is not enough that we do nothing against the Rules of rigorous Justice, properly 
so called; we must also take Care that we offend not against charity, especially 
Christian Charity. Now this may happen sometimes; when, for Instance, it 
appears that such a plundering doth not so much hurt the [enemy] State, or the 
King, or those who are culpable themselves, but rather the Innocent, whom it 
may render so extremely miserable. . . . But farther, if the taking of this Booty 
neither contributes to the finishing of the War, nor considerably weaken the 
Enemy, the Gain arising to himself only from the Unhappiness of the Times, 
would be highly unbecoming an honest Man, much more a Christian. . . . Yet if a 
Soldier, or any other Person, even in a just War, shall burn the Enemy's House, 
without any Command, and besides when there is no Necessity, or just Cause, in 
the Opinion of the Divines he stands obliged to make Satisfaction for those 
Damages. I have with Reason added ... if there be not a just Cause, for if there 
be, he may perhaps be answerable to his own State, whose orders he hath 
transgressed, but not to his Enemy, to whom he hath done no wrong. 85 

Seeking a perspective which largely reflects what States actually did, we 
might cite the views of Vattel. 

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The Law of War 



Since the object of a just war is to overcome injustice and violence, and to use 
force upon one who is deaf to the voice of reason, a sovereign has the right to do 
to his enemy whatever is necessary to weaken him and disable him from 
maintaining his unjust position; and the sovereign may choose the most 
efficacious and appropriate means to accomplish that object, provided those 
means be not essentially unlawful, and consequently forbidden by the Law of 
Nations. A lawful end confers a right only to those means which are necessary to attain 
that end. Whatever is done in excess of such measures is contrary to the natural law, 
and must be condemned as evil before the tribunal of conscience. . . . [ A]s it is very 
difficult sometimes to form a just estimate of what the actual situation demands, 
and, moreover, as it is for each Nation to determine what its particular 
circumstances warrant its doing, it becomes absolutely necessary that Nations 
should mutually conform to certain general rules on this subject. Thus, when it is clear 
and well recognized that such a measure, such an act of hostility, is, in general, 
necessary for overcoming the resistance of the enemy and attaining the object of 
lawful war, the measure, viewed thus in the abstract, is regarded by the Law of 
Nations as lawful and proper in war, although the belligerent who would make use 
of it without necessity, when less severe measures would have answered his purpose, 
would not be guiltless before God and his conscience. This is what constitutes the 
difference between what is just, proper, and irreprehensible in war, and what is merely 
permissible and may be done by Nations with impunity. 86 

Gentili, too, wrote of restraints in war — [it is] "only when we cannot 
overcome their resistance and bring them to terms by less severe means, that 
we are justified in taking away [the] lives" of the enemy. 87 Equally condemned 
were denial of quarter, reprisals against prisoners, 88 violence against women, 
children, the aged and the sick, ecclesiastics, men of letters, husbandmen, and, 
generally, all unarmed persons. Assassination, the use o{ poison and poisoned 
weapons, as well as the poisoning of wells, streams and springs were also beyond 
the pale. 89 

0{ all classical writers, Vattel was the most concerned in seeking to limit 
war's horrors: 

Necessity alone justifies Nations in going to war; and they should all refrain from, 
and as a matter of duty oppose, whatever tends to render war more disastrous. ... Ail 
acts of hostility which injure the enemy without necessity, or which do not tend to 
procure victory, are unjustifiable and as such condemned by the natural law. ... As 
between Nation and Nation, we must lay down general rules, independent of 
circumstances and of certain and easy application. Now, we can only arrive at 
such rules by considering acts of hostility in the abstract and in their essential 
character. Hence, . . . the voluntary Law of Nations limits itself to forbidding acts that 
are essentially unlawful and obnoxious, such as poisoning, assassination, treason, the 

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massacre of an enemy who has surrendered and from whom there is nothing to fear, . . . 
[and] condemns every act of hostility which . . . contributes nothing to the success of our 
arms, and neither increases our strength nor weakens the enemy. On the other hand, 
it permits or tolerates every act which in its essential nature is adapted to 
attaining the end of the war; and it does not stop to consider whether the act was 
unnecessary, useless or superfluous in a given case unless there is the clearest 
evidence that an exception should have been made in that instance; for where the 
evidence is clear freedom of judgment cannot be exercised. Thus it is not, generally 
speaking, contrary to the laws of war to plunder and lay waste a country. But if an 
enemy of greatly superior forces should treat in this manner a town or province 
which he might easily hold possession of as a means of obtaining just and 
advantageous terms of peace, he would be universally accused of waging war in a 
barbarous and uncontrolled manner. The deliberate destruction of public 
monuments, temples, tombs, statues, pictures, etc., is, therefore, absolutely 
condemned . . . , as being under no circumstances conducive to the lawful object 
of war. The pillage and destruction of towns, the devastation of the open country 
by fire and sword, are acts no less to be abhorred and condemned when they are 
committed without evident necessity or urgent reasons. 90 

It is of interest to note that it was not until the adoption of Protocol I in 
1977 91 that impedimenta of the world's cultural heritage 92 or objects 
indispensable to the survival of the civilian population, such as foodstuffs, 
agricultural areas, crops, drinking water installations and the like, came under 
treaty protection. 

The American Civil War produced the first modern codification of 
regulations for use during conflict, with the promulgation by President 
Abraham Lincoln of the Instructions for the Government of Armies of the United 
States in the Field, 93 which had been prepared by Professor Francis Lieber of 
Columbia. Lieber's motivation in preparing this draft may be seen from his 
Political Ethics: "War by no means absolves us from all obligations toward the enemy. 
. . . They result in part from the object of war, in part from the fact that the 
belligerents are human beings, that the declaration of war is, among civilized 
nations, always made upon tacit acknowledgment of certain uses and obligations." 9 * 

In accordance with the Code: 

[Military necessity does not admit of cruelty — that is, the infliction of suffering 
for the sake of suffering or for revenge — . . . the unarmed person is to be spared in 
person, property, and honor as much as the exigencies of war will admit. . . . 
[Protection of the inoffensive citizen of the hostile country is the rule. . . . The 
United States acknowledge [s] and protect|s], in hostile country occupied by 
them, religion and morality; strictly private property; the persons of the 

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The Law of War 



inhabitants, especially those of women; and the sacredness of domestic relations. 
Offenses in the country shall be rigorously punished. . . . All wanton violence 
committed against persons in the invaded country[;] ... all robbery ... or 
sacking, even after taking a place by main force, all rape, wounding, maiming or 
killing of such inhabitants, are prohibited under the penalty of death. . . . Crimes 
punishable by all penal codes, such as arson, murder, assaults, highway robbery, 
theft, burglary, fraud, forgery and rape, if committed by an American soldier in a 
hostile country against its inhabitants, are not only punishable as at home, but in 
all cases in which death is not inflicted, the severer punishment shall be 
preferred. 95 

The Code also recognized that prisoners were to be protected and that it was 
forbidden to deny quarter. Further, the rights of chaplains and medical 
personnel were confirmed, as was the ban on any discrimination in the 
treatment of enemy personnel. It also forbade the use of enemy colors, which 
would now be considered as perfidy. While aimed at the conduct of American 
forces, the Code went further, acknowledging the right to punish what would 
today be described as war crimes: "A prisoner of war remains answerable for his 
crimes committed against the captor's army or people, committed before he 
was captured, and for which he has not been punished by his own 
authorities." 96 As to the problem of members of a force of an enemy State 
considered to be engaged in an "unjust" war, 

[t]he law of nations . . . admits of no ruks or laws different from those of regular 
warfare, regarding the treatment of prisoners of war, although they may belong to 
the army of a government which the captor may consider as a wanton and unjust 
assailant. 97 Modern wars are not internecine wars, in which the killing of the 
enemy is the object. 98 The destruction of the enemy in a modern war, and, 
indeed, modern war itself, are means to obtain the object of the belligerent which 
lies beyond the war. Unnecessary or revengeful destruction of life is not lawful." 

The rules enunciated in the Lieber Code were so consistent with current 
military practice that similar codes or manuals were soon issued by Prussia, the 
Netherlands, France, Russia, Serbia, Argentina, Great Britain, and Spain. 100 
But there was no internationally agreed document setting out the rules and 
principles. However, to the extent that they and the writings of acknowledged 
international law authorities express agreement, they may be regarded as opinio 
juris ac necessitatis, thus constituting the customary law of armed conflict. 
Insofar as they have not been overruled by treaty or expressly rejected by a 
State, especially a significant military power, they are as obligatory as any other 
rules of international law. 101 

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International efforts aimed at controlling activities in conflict had already 
begun in the middle of the nineteenth century. The Declaration of Paris of 
1856 102 was concerned with some selected aspects of maritime warfare, but 
more significant was the 1864 Geneva Convention for the Amelioration of the 
Wounded in Armies in the Field. 103 Adopted only one year after the 
establishment of the International Committee of the Red Cross, it recognized 
the immunity of the symbol and those wearing it. This Convention initiated a 
series of Geneva Conventions (1906, 1929, and 1949, culminating in the 
Protocols of 1977) directed at the treatment and protection of those hors de 
combat — the wounded on land or at sea, prisoners of war, civilians and other 
noncombatants — and known as the Geneva Law or international 
humanitarian law. 

As to the methods of warfare, the first international effort at control was the 
1868 Declaration of St. Petersburg directed against the use of lightweight 
explosive bullets, 104 and it is worth noting the motive for such ban, as expressed 
in the Preamble: 

[HJaving by common agreement fixed the technical limits at which the 
necessities of war ought to yield to the requirements of humanity . . . [the parties] 
declare . . . That the progress of civilization should have the effect of alleviating 
as much as possible the calamities of war; That the only legitimate object which 
States should endeavour to accomplish during war is to weaken the military 
forces of the enemy; That for this purpose it is sufficient to disable the greatest 
possible number of men; That this object would be exceeded by the employment 
of arms which uselessly aggravate the sufferings of disabled men, or render their 
death inevitable; That the employment of such arms would, therefore, be 
contrary to the laws of humanity. 105 

With these lofty motives in mind, the Declaration banned their use on a 
reciprocal basis among those States which adhered to the Declaration. In fact, 
only nineteen European States did so. 

Even fewer States attended the 1874 Brussels Conference that drew up a 
Project of an International Declaration Concerning the Laws and Customs of 
War. This postulated principles concerning the administration of occupied 
territory, the distinction between combatants and noncombatants, the 
conduct of sieges and bombardments, as well as the treatment of spies, 
prisoners of war, and the sick and wounded. While the Project never came into 
force, we should not overlook the reiteration of the preambular terms of St. 
Petersburg, nor the even more significant statement that: 

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by revising the laws and general usages of war, whether with the object of 
defining them with greater precision, or with the view of laying down, by a 
common agreement, certain limits which will restrain, as far as possible, the 
severities of war, [war] . . . would involve less suffering, would be less liable to those 
aggravations produced by uncertainty, unforeseen events, and the passions excited by 
the struggle; it would tend more surely to that which should be its final objective, viz. , the 
re-establishment of good relations, and a more solid and lasting peace between the 
belligerent States. 106 

The Project embodied a principle which is to be found in every treaty since. 
By Article 12, 

[T]he laws of war do not recognize in belligerents an unlimited power in the 
adoption of means of injuring the enemy . . . [and, Article 13, according to this 
principle [the following acts] are especially forbidden: 107 

(a) Employment of poison or poisoned weapons; 

(b) Murder by treachery of individuals belonging to the hostile nation or army; 

(c) Murder of an enemy who, having laid down his arms or having no longer 
means of defence, has surrendered at discretion; 

(d) The declaration that no quarter will be given; 

(e) The employment of arms, projectiles or missiles calculated to cause 
unnecessary suffering [now understood objectively as relating to what is 
necessary for the achieving of an operation rather than subjectively as measured 
by the individual on whom the suffering has been inflicted 108 ], as well as the use 
of projectiles prohibited by the Declaration of St. Petersburg of 1868; 

(f) Making improper use of a flag of truce, of the national flag or of the military 
insignia and uniform of the enemy, as well as the distinctive badges of the 
Geneva Convention; 

(g) Any destruction or seizure of the enemy's property that is not imperatively 
demanded by the necessity of war. 

Largely building upon the Brussels Project, at its 1880 meeting the Institute 
of International Law drew up the Oxford Manual on the Laws of War. Once 
again, what is of major significance and reason for the law of war is the Preface 
to the Manual: 

War holds a great place in history, and it is not to be supposed that men will 
soon give it up — in spite of the protests which it arouses and the horror which it 
inspires — because it appears to be the only possible issue of disputes which 
threaten the existence of States, their liberty, their vital interests. But the 
gradual improvement in customs should be reflected in the method of 
conducting war. It is worthy of civilized nations "to restrain the destructive force 
of war, while recognizing its inevitable necessities." The problem is not easy of 

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solution; however, some points have already been solved, and very recently the 
draft Declaration of Brussels has been a solemn pronouncement of good 
intentions of governments in this connection. It may be said that independently 
of the international laws existing on this subject, there are today certain principles 
of justice which guide the public conscience, which are manifested even by general 
customs, but which it would be well to fix and make obligatory. . . . The Institute does 
not propose an international treaty, which it might perhaps be premature or at 
least very difficult to obtain; but it believes it is fulfilling a duty in offering to the 
governments a Manual suitable as the basis for national legislation in each State, and 
in accord with the progress of juridical science and the needs of civilized armies. Rash 
and extreme rules will not be found therein. The Institute has not sought 
innovations in drawing up the Manual; it has contented itself with stating clearly 
and codifying the accepted ideas of our age so far as this has appeared allowable and 
practicable. By so doing, it believes it is rendering service to military men themselves. In 
fact so long as the demands of opinion remain indeterminate, belligerents are 
exposed to painful uncertainty and to endless accusations. A positive set of rules . . . 
if they are judicious, serves the interests of belligerents and is far from hindering them, 
since by preventing the unchaining of passions and savage instincts — which battle 
always awakens, as much as it awakens courage and manly virtue — it strengthens 
the discipline which is the strength of armies; it also ennobles their patriotic mission in 
the eyes of the soldiers by keeping them within the limits of respect due to the rights of 
humanity. But in order to attain this end it is not sufficient for sovereigns to 
promulgate new laws. It is essential, too, that they make these laws known to all 
people, 50 that when a war is declared, the men called to take up arms to defend the 
causes of the belligerent States, may be thoroughly impregnated with the special rights 
and duties attached to the execution of such a command} 09 

Only a few of the Manual's provisions need be mentioned, and that because 
they have, in almost identical wording, been embodied in the relevant treaties 
beginning with the Hague Conference of 1899. 

The state of war does not admit of acts of violence, save between the armed 
forces of belligerent States. . . . Every belligerent armed force is bound to conform to 
the laws of war. The laws of war do not recognize in belligerents an unlimited liberty as 
to the means of injuring the enemy. They are to abstain especially from all needless 
severity. . . . No invaded territory is regarded as conquered until the end of the 
war; until that time the occupant exercises . . . only de facto power, essentially 
provisional in character. . . . It is forbidden to maltreat inoffensive populations . . . 
or employ arms, projectiles, or materials of any kind calculated to cause 
superfluous suffering or to aggravate wounds ... [or] to injure or kill an enemy who 
has surrendered at discretion or is disabled, and to declare in advance that 
quarter will not be given, even by those who do not ask it for themselves. 110 
Wounded and sick soldiers should be brought in and cared for, to whatever 

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nation they belong. ... It is forbidden to rob or mutilate the dead lying on the 
field of battle. ... It is forbidden to attack and to bombard undefended places. 
The commander of an attacking force, save in cases of open assault, shall, before 
undertaking a bombardment, make every due effort to give notice thereof to the 
local authorities. 111 . . . Ambulances and hospitals for the use of armies are 
recognized as neutral and should, as such, be protected and respected by 
belligerents, so long as any sick or wounded, are therein. 111 . . . The occupant [of 
enemy territory] should maintain the laws which were in force in the country in 
time of peace, and should not modify, suspend, or replace them, unless necessary 
[this proviso would permit amendment if the said laws ran counter to the 
occupant's concept of moral conduct, so long as that was in conformity with 
accepted concepts of justice). . . . The population of the invaded district cannot 
be compelled to swear allegiance to the hostile Power. . . . Family honour and 
rights, the lives of individuals, as well as their religious convictions and practice, 
must be respected [again, this would not oblige an occupant to recognize 
practices repulsive to its own way of life] .... Prisoners of war are in the power of 
the hostile government, but not in that of the individuals or corps who captured 
them. They are subject to the laws and regulations in force in the army of the 
enemy. They must be humanely treated — Arms maybe used, after summoning, 

against a prisoner attempting to escape Prisoners cannot be compelled in any 

manner to take any part whatever in the operation of war, 113 nor compelled to 
give information about their country or their army. Offenders against the laws of 
war are liable to the punishment specified in the penal law. UA 

The penal law cited in the final quoted sentence would be the national law, 
no provision for trial by any international tribunal having been made. Nor was 
any obligation imposed requiring a national force to hand an accused offender 
to the enemy so that he could be tried by an enemy tribunal. 

Perhaps at this point it would be in order to comment upon the views as to 
the law of war o{ one or two of the major players in international armed 
conflict. According to Great Britain, 

[t]he laws of war are the rules which govern the conduct of war — rules with 
which, according to international law, belligerents and neutrals are bound to 
comply. They are binding not only upon States as such but also upon their nationals 
and, in particular, upon the individual members of the armed forces. In antiquity, and 
in the earlier part of the Middle Ages, no rules of warfare existed. 115 During the 
latter part of the Middle Ages, however, the influence of Christianity as well as 
that of chivalry made itself felt, and gradually the practice of warfare became less 
savage. The present laws of war are the result of a slow growth. Isolated milder 
practices became in the course of time usages, which at first were not 

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accompanied by a sense of legal obligation, but which by custom (i.e., constant 
practice accepted as law) and by treaties, gradually developed into legal rules. . . . 
The laws of war consist, therefore, partly of customary rules which have grown up in 
practice, and pardy of written rules, that is to say, rules which have been expressly 
agreed upon by governments in international treaties and conventions. . . . The 
development of the law of war has been determined by three principles: first, the 
principle that a belligerent is justified in applying compulsion and force of any kind, 
to the extent necessary for the realisation of the purpose of war, that is, the 
complete submission of the enemy at the earliest possible moment with the least 
possible expenditure of men, resources and money; secondly, the principle of 
humanity, according to which kinds and degrees of violence which are not 
necessary for the purpose of war are not permitted to a belligerent; and, thirdly, 
the principle of chivalry, which demands a certain amount of fairness in offence 
and defence, and a certain mutual respect between the opposing forces. The law 
of war is inspired by the desire of all civilised nations to reduce the evils of war by: 

(a) protecting both combatants and non-combatants from unnecessary suffering; 

(b) safeguarding certain fundamental human rights of persons who fall into the 
hands of the enemy, particularly prisoners of war, the wounded and sick, and 
civilians, and (c) facilitating the restoration of peace. 116 

Although the United States manual, The Law of Land Warfare, is almost 
identical in its wording, 117 it stresses a point not included in the British 
statement of underlying general principles: 

The prohibitory effect of the law of war is not minimized by "military 
necessity!,]" which has been defined as the principle which justifies those 
measures not forbidden by international law which are indispensable for securing 
the complete submission of the enemy as soon as possible. Military necessity has 
been generally rejected as a defense for acts forbidden by the customary and 
conventional laws of war inasmuch as the latter have been developed and framed 
with consideration for the concept of military necessity. 118 

Since both manuals refer to the importance of customary as well as 
conventional law, it is useful to cite the comments in the United States text on 
the sources of the law of war: 

The law of war is derived from two principal sources: 

{a) Lawmaking Treaties (or Conventions), such as the Hague and Geneva 
Conventions. 

(b) Custom. Although some of the law of war has not been incorporated in any 
treaty or convention to which the United States is a party, this body of unwritten 
or customary law is firmly established by the custom of nations and well defined by 
recognized authorities on international law. Lawmaking treaties may be compared 

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with legislative enactments in the national law of the United States and the 
customary law of war with the unwritten Anglo- American common law. 119 

Despite this statement, it is not always easy to determine what a particular 
State recognizes as customary law. This may be seen if we refer to the United 
States attitude to the use of poison gas. As already indicated, poison of any kind 
was regarded as illegal from earliest times and particularly in the writings of the 
"fathers" of international law. Moreover, by the Geneva Protocol of 1925, 120 to 
which by the outbreak of World War II there were forty parties, with the 
United States and Japan as the only major powers not ratifying or acceding, the 
use of poisonous gas and bacteriological warfare was prohibited. Paragraph 38 
of the United States manual states: 

The United States is not a party to any treaty, now in force, that prohibits or 
restricts the use in warfare of toxic or noxious gases, of smoke or incendiary 
materials, or of bacteriological warfare. . . . The Geneva Protocol for the 
prohibition of the use in war of asphyxiating, poisonous, or other gases, and of 
bacteriological methods of warfare, . . . has been ratified or adhered to by and is 
now effective between a considerable number of States. However, the United 
States Senate has refrained from giving its advice and consent to the ratification by the 
United States, and it is accordingly not binding upon this country [emphasis added] . 

On the other hand, the United States Naval War College was of the opinion 
that the "use of poisonous gases and those that cause unnecessary suffering is in 
general prohibited;" 121 in 1943, during World War II, President Franklin D. 
Roosevelt stated, in response to reports "that the Axis powers are making 
significant preparations indicative of [an] intention ... to loose upon mankind 
such terrible and inhumane weapons [, that] . . . use of such weapons has been 
outlawed by the general opinion of civilized mankind. This country has not used 
them, and I hope that we will never be compelled to use them. I state 
categorically that we shall under no circumstances resort to the use of such 
weapons unless they are first used by our enemies." 122 Despite the apparent 
incompatibilities, the United States acceded to the Protocol in 1975, and the 
Field Manual was amended. 123 The amendment includes the introductory 
comment, "Whereas the use in war of asphyxiating, poisonous or other gases, 
and of all analogous liquids, materials or devices, has been justly condemned by 
the general opinion of the civilised world" — words which had already appeared 
in the text of the Protocol and repeated by the president in 1943! It would 
appear, however, that the official view of the Department of the Army is that 
gas is forbidden by conventional and not by customary law. 

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While it is true that the manuals referred to are concerned with land 
warfare, the principles enunciated are of general application and equally 
significant as basic principles underlying air and maritime warfare. 

By way of contrast, and reflecting the views of Clausewitz, 1 4 reference might 
be made to the Introduction o( the German War Book: 

[T]he "argument of war" permits every belligerent State to have recourse to all 
means which enable it to attain the object of the war; still, practice has taught 
the advisability of allowing in one's own interest the introduction of a limitation 
in the use of certain methods of war and a total renunciation of the use of others. 
Chivalrous feelings, Christian thought, higher civilization and, by no means least 
of all, the recognition of one's own advantage, have led to a voluntary and 
self-imposed limitation, the necessity of which is today tacitly recognized by all 
States and their armies. They have led in the course of time, in the simple 
transmission of knightly usage in the passages of arms, to a series of agreements, 
hallowed by tradition, and we are accustomed to sum these up in the words 
"usage of war" [Kriegsbrauch], "custom of war" [Kriegssitte], or "fashion of war" 
[Kriegsrrmnier]. Customs of this kind have always existed, even in the times of 
antiquity; they differed according to the civilization of the different nations and 
their public economy, they were not always identical, even in one and the same 
conflict, and they have in the course of time often changed; they are older than 
any scientific law of war, they have come down to us unwritten, and moreover 
they maintain themselves in full vitality; they have, therefore, won an assured 
position in standing armies according as these latter have been introduced into 
the systems of almost every European State. The fact that such limitations of the 
unrestricted and reckless application of all the available means for the conduct of 
war, and thereby the humanization of the customary methods of pursuing war, 
really exist, and are actually observed by the armies of all civilized States, has in 
the course of the nineteenth century often led to attempts to develop, to extend, 
and thus to make universally binding these pre-existing usages of war; to elevate 
them to the level of laws binding nations and armies, in other words to create a 
codex belli; a law of war. All these attempts have hitherto, with some few 
exceptions . . . , completely failed. If, therefore, in the following work the 
expression "the law of war" is used, it must be understood that by it is meant not a 
lex scripta introduced by international agreements [although Germany had 
become a party to the Hague Conventions in 1909], but only a reciprocity of 
mutual agreement; a limitation of arbitrary behaviour, which custom and 
conventionality, human friendliness and a calculating egotism have erected, but 
for the observance of which there exists no express sanction, but only "the fear of 
reprisals" decides. Consequently, the usage of war is even now the only means of 
regulating the relations of belligerent States to one another. But with the idea of 
the usages of war will always be bound up the character of something transitory, 
inconstant, something dependent on factors outside the army. Nowadays it is not 

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only the army which influences the spirit of the customs of war and assures 
recognition of its unwritten laws. Since the almost universal introduction of 
conscription, the peoples themselves exercise a profound effect upon this spirit. 
In the modern usages of war one can no longer regard merely the traditional 
inheritance of the ancient etiquette of the profession of arms, and the 
professional outlook accompanying it, but there is also the deposit of the currents 
of thought which agitate our time. But since the tendency of thought of the last 
century was dominated essentially by humanitarian considerations which not 
infrequently degenerated into sentimentality and flabby emotion, there have not 
been wanting attempts to influence the development of the usages of war in a 
way which was in fundamental contradiction with the nature of war and its 
object. Attempts of this kind will also not be wanting in the future, the more so as 
these agitations have found a kind of moral recognition in some provisions of the 
Geneva Convention and the Brussels and Hague Conferences. Moreover, the 
officer is a child of his time. He is subject to the intellectual tendencies which 
influence his own nation; the more educated he is the more will this be the case. 
The danger that, in this way, he will arrive at false views of the essential character 
of war must not be lost sight of. The danger can only be met by a thorough study 
of war itself. By steeping himself in military history an officer will be able to guard 
himself against excessive humanitarian notions, it will teach him that certain 
severities are indispensable to war, nay more, that the only true humanity very 
often lies in a ruthless application of them. 125 

The somewhat cynical and cavalier attitude to the law of war expounded 
here finds its application as recently as 1941 in the reply of Field Marshal 
Wilhelm Keitel to the warning by Admiral Wilhelm Canaris that the German 
treatment of Soviet prisoners of war was contrary to international law: "The 
objections arise from the military concept of chivalrous warfare. This is the 
destruction of an ideology." 126 

Regardless of the German point of view, it is generally accepted that the 
binding law of war today finds its origins in the Geneva and Hague 
conventions. The latter are the product of the Conferences o{ 1899 and 1907 
called at the initiative of Czar Nicholas II, and the principles established there 
underlie what is now known as the "Law of the Hague." In 1899, in addition to 
the Declaration against soft-nosed explosive bullets already referred to, there 
appeared a ban on the diffusion of asphyxiating or deleterious gases, as well as 
the first elementary effort to deal with aerial warfare by banning the launching 
of projectiles from balloons. 127 For the main part, these Declarations were 
regarded as temporary pending the calling of a third Hague Conference, which 
has never taken place. However, even though not all the powers have ratified 

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.^ — — — — ^— — — — ^— _ i — ^— ^ — — — ^— ^— — — — — — — •— — ^— — — — — 

or acceded thereto, the general view is that they express rules of customary law. 
That this is so is demonstrated by the Judgment of the International Military 
Tribunal at Nuremberg with its comment: 

Several of the belligerents in the recent war were not parties to the [IVth] 
Convention. . . . [B]y 1939 these rules laid down in the Convention were 
recognized by all civilized nations, and were regarded as being declaratory of the 
laws and customs of war. . . . The argument in defence of the charge with regard 
to the murder and ill- treatment of Soviet prisoners of war, that the U.S.S.R. was 
not a party to the Geneva Convention is quite without foundation. On the 15th 
September 1941 Admiral Canaris protested against the regulations for the 
treatment of Soviet prisoners of war. ... He then stated!,] "The Geneva 
Convention for the treatment of prisoners of war [to which the Soviet Union was 
not a party) is not binding in the relationship between Germany and the 
U.S.S.R.; therefore only the principles of general international law on the 
treatment of prisoners of war apply. Since the 18th century, these have gradually 
been established along the lines that war captivity is neither revenge nor 
punishment, but solely protective custody, the only purpose of which is to 
prevent the prisoners of war from further participation in the war. This principle 
developed in accordance with the view held by all armies that it is contrary to 
military tradition to kill or injure helpless people. . . . The decrees for the 
treatment of Soviet prisoners of war enclosed are based on a fundamentally 
different view-point." This protest which correctly stated the legal position, was 
ignored. 128 

It is now apt that reference be made to Convention II of 1 899, as amended as 
Convention IV in 1907. Many of its basic principles, and especially the 
Preamble, are applicable mutatis mutandis in any theater of war: 

Seeing that, while seeking means to preserve peace and prevent armed conflict 
between nations, it is likewise necessary to bear in mind the cases where the 
appeal to arms has been brought about by events which their care was unable to 
avert; Animated by the desire to serve, even in this extreme case, the interests of 
humanity and the ever progressive needs of civilization; Thinking it important, with 
this object, to revise the general laws and customs of war, either with a view to 
defining them with greater precision or to confirming them, within such limits as 
would mitigate their severity as far as possible. . . . [T]hese provisions, the wording of 
which has been inspired by the desire to diminish the evils of war, as far as military 
requirements permit, are intended to serve as a general rule of conduct for the 
belligerents in their mutual relations and in their relations with the inhabitants. It has 
not, however, been found possible at present to concert regulations covering all 
the circumstances which arise in practice. On the other hand, the High 
Contracting Parties clearly do not intend that unforeseen cases should, in the 

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absence of a written undertaking, be left to the arbitrary judgment of military 
commanders. Until a more complete code of the laws of war has been issued, the High 
Contracting Parties deem it expedient to declare that, in cases not in the Regulations 
adopted by them [and annexed to the Convention] the inhabitants and the 
belligerents remain under the protection and the rule of the principles of the law of 
nations, as they result from the usages established among civilized peoples, from the laws 
of humanity, and the dictates of the public conscience. 129 

The last sentence is known as the Martens Clause, after the Russian foreign 
minister who introduced it. Its purpose was to deal with any lacunae or 
unexpected situation that might arise, thereby preventing the possibility of any 
belligerent contending that its actions were legitimate since they were not 
expressly forbidden by the Convention. Today, it is understood to apply to 
every armed conflict and tends to be embodied, either directly or by way of 
paraphrase, in every treaty concerning the conduct of hostilities. Thus, Article 
1, paragraph 2, of Protocol I, 1977, provides: "In cases not covered by the 
Protocol or by other international agreements, civilians and combatants 
remain under the protection and authority of the principles of international 
law derived from established custom, from the principles of humanity and from 
the dictates of public conscience." Embodying the principle in the actual body 
of the Protocol rather than, as had been the practice formerly, in the Preamble, 
ensures that it has been elevated to become part of the mandatory law. It is 
unfortunate, however, that no attempt has been made to define what 
constitutes "the principles of humanity and the dictates of the public 
conscience." Presumably, it is assumed that these are so well known and so 
generally accepted as to render definition superfluous. Interestingly enough, in 
the case of Protocol II dealing with non-international conflicts, the Clause 
remains part of the Preamble. Since this is the first treaty effort to deal with 
such conflicts, other than the short mini-bill of rights found in Article 3 
common to the four 1949 Conventions, the reference to "established custom" 
has, perhaps not unreasonably, been omitted. 

In accordance with general treaty practice at the time, the Hague 
Conventions contain a "general participation" clause, the effect of which is to 
ensure that the Convention only applies during a conflict in which all the 
belligerents are parties to the Convention claimed to be applicable. This would 
mean that if any belligerent, however insignificant, even one only nominally a 
party to the conflict but not contributing any forces or materiel, has not 
acceded to the Convention, it would not be applicable even though the "real" 
belligerents were all apparently bound thereby. This failing tended to give 
added significance to the Martens Clause, with its reference to custom and the 

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like. Moreover, the "real" belligerents in such circumstances have tended to 
apply the Convention as between themselves, 1 while to the extent that the 
Convention reproduces customary law 131 or is regarded as having hardened 
into such custom (as explained by the Nuremberg Tribunal), 132 the "general 
participation" clause has lost its significance; in fact, it is no longer used. 
Instead, as is made clear in the 1949 Conventions, the present law operates "in 
all circumstances . . . [and although one of the Parties in conflict may not be a 
Party to the present Convention, the Powers who are parties thereto shall 
remain bound by it in their mutual relations . . . [and] in relation to the said 
Power, if the latter accepts and applies the provisions thereof." 133 

While the Hague and Geneva Conventions applied in both world wars, it 
should be borne in mind that in none of them was any provision made for the 
trial of individual offenders. The only reference to "liability" in the 
then-existing black-letter law was Article 3 of Hague Convention IV, which 
provided that "a belligerent party which violates the provisions of the 
regulations shall, if the case demand, be liable to pay compensation. ... It shall 
be responsible for all acts committed by persons forming part of its armed 
forces." It is on the basis of this provision that former prisoners of the Japanese 
are seeking to recover personal compensation 134 — regardless of the fact that 
unless it is clearly provided otherwise, only the States parties to the treaty 
acquire enforceable rights thereunder 135 and even though the Peace Treaty 
with Japan 136 liquidated personal claims, thus invalidating any claim that might 
have been created under the 1907 Convention. 

Although the Convention provides for state responsibility which, in 
accordance with the normal rules of international law, amounts to an 
international tort resulting from breach of treaty, it says nothing about the 
liability of any officer ordering, nor of personal responsibility of any individual 
committing, a breach. Therefore, until the establishment of the International 
Military Tribunals at Nuremberg and Tokyo at the end of World War II, all 
trials of persons charged with committing breaches of the laws and customs of 
war were conducted by national tribunals 13 ' applying customary international 
law, 138 the Hague Regulations, 139 or, in the case of their own personnel, the 
national military or criminal code. 140 

It is sufficient for our purposes merely to mention the offenses within the 
jurisdiction of the International Tribunals without going into excessive detail. 
By the London Charter establishing the Nuremberg Tribunal, 141 jurisdiction 
was granted over crimes against peace, war crimes, and crimes against 
humanity; the same was done in the case of the Tokyo tribunal. More 
important perhaps than the judgments, was the General Assembly's Resolution 

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affirming the Principles of International Law Recognized by the Charter of the 
Tribunal, 142 especially as these were spelled out by the International Law 
Commission in 1950: 

I. Any person who commits an act which constitutes a crime under 
international law is responsible therefor and liable to punishment. 

II. The fact that internal law does not impose a penalty for an act which 
constitutes a crime under international law does not relieve the person who 
committed the act from responsibility under international law. 

III. The fact that a person who committed an act which constitutes a crime 
under international law acted as Head of State or responsible Government 
official does not relieve him from responsibility under international law. 

IV. The fact that a person acted pursuant to order of his Government or of a 
superior does not relieve him from responsibility under international law, 
provided a moral choice was in fact possible to him. 

V. Any person charged with a crime under international law has the right to a 
fair trial on the facts and law. 

VI. The crimes hereinafter set out are punishable as crimes under 
international law: 

(a) Crimes against peace. . . . 

(b) War crimes. . . . 

(c) Crimes against humanity. . . . 

VII. Complicity in the commission of a crime against peace, a war crime, or a 
crime against humanity ... is a crime under international law. 143 

Perhaps it should be pointed out here that while the Principles deal explicitly 
with superior orders, they do so only implicitly in so far as the counterpart of 
command responsibility is concerned. 144 By way of contrast, Protocol I is silent on 
superior orders, 145 but very specific on command responsibility. 146 Moreover, the 
Protocol has made it difficult for any superior to claim that he was unaware of the 
law, since Article 82 requires legal advisers to be "available, when necessary, to 
advise military commanders at the appropriate level 147 on the application of the 
Conventions and the Protocol [as well as] on the appropriate instruction to be 
given to the armed forces on this subject." 

The significance of the Nuremberg Judgment may be seen in the manner in 
which subsequent national war crimes tribunals have referred to and applied 
the principles stemming from that Judgment. 148 It has equally proved 
significant in the jurisprudence of the ad hoc Tribunal established for the 
Prosecution of Persons Responsible for Serious Violations of International 
Humanitarian Law Committed in the Territory of Former Yugoslavia since 
1991, particularly in relation to the concept of crimes against humanity. 149 

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A problem that confronts the ordinary man in the field is the legality of 
weaponry. Some weapons are considered to be illegal per se, particularly those 
which have become outdated, such as boiling oil (effective against besieging 
forces) or those useful in dismounting knights in armor, such as the club, battle 
axe, ball and chain, or heavy lance. 150 While a combatant would probably not 
be held liable merely because he used the weapons issued to him, since he 
would almost certainly not know what type of ammunition was in fact 
permitted, it would be illegal for him, and subject him to trial, to alter the 
weapons issued so as to cause injuries likely to result in unnecessary suffering, 
which is forbidden in every text relating to conduct in bello. 

Relatedly, particular States have occasionally sought to ban or declare illegal 
the employment of "barbarian" forces. Thus, the German War Book 
condemned as "closely connected with the unlawful instruments of war the 
employment of uncivilized and barbarous peoples in European wars. . . . The 
transference of African and Muhammedan Turcis to a European seat of war by 
the French in the year 1870 was ... a retrogression from civilized to barbarous 
warfare, as these troops had and could have no conception of 
European-Christian culture, of respect for property, and the honour of women, 
etc." 151 Today it is clear that such discrimination would be completely contrary 
to the law, and the modern soldier must on no account discriminate among 
enemy personnel on the basis of sex, race, nationality, religion, political 
opinion or any other criteria. 152 In other words, in accordance with the basic 
humanitarian principles on which the law of armed conflict rests, all members 
of an adverse party are entitled to equal protection. However, by Article 47 of 
Protocol I, this basic principle of non-discrimination does not extend to 
mercenaries, who are denied the status of lawful combatants and are therefore 
not regarded as prisoners of war if captured. 153 

Since the adoption of Protocol II annexed to the 1980 Convention on 
Prohibition or Restriction on the Use of Certain Conventional Weapons which 
may be Deemed to be Excessively Injurious or to have Indiscriminate Effects, 
the placing of booby traps — probably one of the easiest weapons for the 
individual man in the field to make for himself — is illegal if employed as a 
reprisal against civilians or indiscriminately placed so that it "may be expected 
to cause incidental loss of civilian life, injury to civilians, damage to civilian 
objects, or a combination thereof." 154 It would not, however, be an offense for 
him to booby-trap a building that has been evacuated by civilians and which he 
reasonably anticipates is likely to be occupied by members of the adverse party's 
armed forces. 

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Other than the Conventional Weapons Convention, as amended, little by 
way of treaty has been introduced to expand the scope of the law of war beyond 
what is to be found in the Hague and Geneva Law. Perhaps the major 
development of 1949, arising from the experience of occupied Europe during 
World War II, was the adoption of Convention IV 155 relating to the protection 
of civilians in occupied territory, although all that need be said of it here is that 
it introduced criminal liability for those committing grave breaches against 
such "protected" persons. The principal innovation of the four Conventions, 
however, was the introduction of Article 3 into each of them. This 
promulgated a minimal statement of rights that would apply even in a 
non-international armed conflict. It is of interest to mention that the majority 
of the Trial Chamber of the ad hoc Tribunals for the former Yugoslavia in the 
Tadic case, while recognizing the significance and application of Article 3, 
rejected in the particular circumstances of that case the contention that the 
Conventions, including the Civilians Convention, were applicable. 156 Some 
effort had been made in 1977, with the adoption of Protocol I, 157 to extend the 
law to certain conflicts previously regarded as non-international. By Article 1, 
paragraph 4, wars of national liberation were raised to the level of international 
armed conflicts governed by the provisions of the law of war, although by 
Article 44, paragraph 3, protection is given to those who might be described as 
"farmers by day and combatants by night," provided they "carry their arms 
openly" during an engagement or while visible to the adversary during 
deployment preparatory to launching an attack. 

Extending the effort to humanize non-international conflicts, in which 
traditionally the horrors are frequently far more grave and extensive than they 
are in international conflicts, Protocol II 158 elaborates some measures of 
humanitarian law which are applicable in a non-international conflict not 
amounting to a war of national liberation, which would fall within the purview 
of Protocol I. While Protocol II forbids a variety of acts, it makes no provision 
for punishment of breaches. Nor for that matter is common Article 3 o{ the 
Conventions, which also deals with non-international conflicts, included in 
any of the lists of grave breaches in the four Conventions or in Protocol I. This 
would imply that there is no way to deal with breaches oi the law if committed 
during a non-international conflict. However, since both Protocol II and 
common Article 3 forbid certain types of action, it must be presumed that the 
intention is that such activities must be amenable to trial and punishment. 
Further, it should be noted that most of the acts forbidden by Protocol II, and 
especially those listed in common Article 3, would, when directed against 
humans, almost certainly amount to crimes against humanity, thus giving rise 

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to universal jurisdiction. Moreover, the Statutes of both the ad hoc tribunals 
established to deal with breaches of the law occurring in Rwanda and the 
former Yugoslavia clearly envisage criminal jurisdiction as being applicable to 
such conflicts, 159 although the Judgment of the Trial Chamber in the Tadic 
Case 160 has apparently reduced the significance of the Conventions in such 
conflicts. 

Among other developments in the law introduced in 1977 — which to some 
extent bring the modern law into line with such ecological injunctions as those 
relating to the immunity of trees and the like in the Old Testament — are those 
relating to protection of the natural environment. By Article 55 of Protocol I 
"[c]are shall be taken in warfare to protect the natural environment against 
widespread, long-term and severe damage. This protection includes 
prohibition oi the use of methods or means of warfare which are intended or 
may be expected to cause such damage to the natural environment and thereby 
to prejudice the health and survival of the population." Even more in direct 
line with the Old Testament or the military codes of the feudal period is Article 
54, whereby it is forbidden "to attack, destroy, remove or render useless objects 
indispensable to the survival of the civilian population, such as foodstuffs, 
agricultural areas for the production of foodstuffs, crops, livestock, drinking 
water installations and supplies and irrigation works, for the specific purpose of 
denying them for their sustenance value to the civilian population of the 
adverse Party, whatsoever the motive." 

Perhaps most likely to affect adversely the environment and cause 
widespread, long-term, and severe damage are nuclear weapons. However, 
since the Intentional Committee of the Red Cross and the major powers 
considered the issue to be one of disarmament rather than means or methods of 
warfare, the Protocol does not deal with them in any way. It does, however, 
grant protection to "works or installations containing dangerous forces, namely 
dams, dykes and nuclear electrical generating stations." 161 

However, there have been some developments outside of treaty in relation 
to nuclear weapons. In 1996, the International Court of Justice handed down 
its Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons. 162 
Pointing out that because it could not find "a conventional rule of general 
scope, nor a customary rule specifically proscribing the threat or use of nuclear 
weapons per se, it [became necessary to deal] with the question whether 
recourse to nuclear weapons must be considered as illegal in the light of the 
principles and rules of international humanitarian law applicable in armed 

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conflict," 163 bearing in mind the continued significance of the Martens Clause. 
The court noted that 

humanitarian law, at a very early stage, prohibited certain types of weapons 
either because of their indiscriminate effects on combatants and civilians or 
because of the unnecessary suffering caused to combatants, 164 that is to say, a 
harm greater than that unavoidable to achieve legitimate military objectives. If 
an envisaged use of weapons does not meet the requirements of humanitarian 
law, a threat to engage in such use would also be contrary to that law. . . . 
[Moreover,] these fundamental rules [embodied in the Hague and Geneva 
Conventions] are to be observed by all States whether or not they have ratified 
the conventions that contain them, because they constitute intransgressible 
principles of international customary law. 165 

Inasmuch as it has been suggested that the accepted rules were irrelevant 
since they developed before the invention of nuclear weapons, the Court noted 
that the conferences of 1949 and 1994-1997 left these weapons aside, and 
accepted that 

there is a qualitative difference between nuclear weapons and all conventional 
weapons. However, it cannot be concluded from this that the established 
principles and rules of humanitarian law applicable in armed conflicts did not apply 
to nuclear weapons. Such a conclusion would be incompatible with the 
intrinsically humanitarian character of the principles in question which permeates 
the entire law of armed conflict and applies to all forms of warfare and to all kinds 
of weapons, those of the past, those of the present and those of the future. 166 

Having thus emphasised the validity of the rules of international 
humanitarian law, it is perhaps not surprising that the Court found itself unable 
to: 

make a determination on the validity of the view that the recourse to nuclear 
weapons would be illegal in any circumstances owing to their inherent and total 
incompatibility with the law applicable in armed conflict. Certainly, . . . the 
principles and rules of law applicable in armed conflict — at the heart of which is 
the overriding consideration of humanity — make the conduct of armed 
hostilities subject to a number of strict requirements. Thus, methods and means 
of warfare, which would preclude any distinction between civilian and military 
targets, or which would result in unnecessary suffering to combatants, are 
prohibited. In view of the unique characteristics of nuclear weapons, . . . the use 
of such weapons in fact seems scarcely reconcilable with respect for such 
requirements. Nevertheless, the Court considers that it does not have sufficient 

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elements to enable it to conclude with certainty that the use of nuclear weapons 
would necessarily be at variance with the principles and rules applicable in armed 
conflict in any circumstance. . . . 167 

In the light of this reasoning, the Court concluded that it 

cannot lose sight of the fundamental right of every State to survival, and thus the 
right to resort to self-defence, in accordance with Article 51 [of the Charter], 
when survival is at stake. . . . Accordingly, in view of the present state of 
international law viewed as a whole, the Court is led to observe that it cannot 
reach a definite conclusion as to the legality or use of nuclear weapons by a State 
in an extreme circumstance of self-defence, in which its very survival would be at 
stake. . . . 168 

All one can say on the basis of the Court's Opinion is that the use or threat 
to use a nuclear weapon would be contrary to the principles of international 
humanitarian law and therefore illegal. However, in circumstances in which a 
state may feel — and this is a matter of pure auto-interpretation for the State 
itself — that its very survival is at stake, then a recourse to the use of this 
weapon might nevertheless be lawful! 

Just as there is no black-letter law with regard to nuclear weapons, so there is 
no treaty law concerning aerial warfare. However, in 1923 a Committee of 
Experts drew up a code of draft Rules of Air Warfare 169 which are generally 
regarded as, "to a great extent, correspond [ing] to the customary rules and 
general principles underlying the conventions on the law of war on land and at 
sea." 170 We also find in the decision of the Nagasaki District Court, when 
considering the legality of the atomic attacks on Hiroshima and Nagasaki, 
some judicial comment to support this view: 

The Draft Rules of Air Warfare cannot directly be called positive law, since they 
have not yet become effective as authoritative with regard to air warfare. 
However, international jurists regard the Draft Rules as authoritative with 
regard to air warfare. Some countries regard the substance of the rules as a 
standard of action by armed forces, and the fundamental principles of the Draft 
Rules are consistently in conformity with international law regulations and 
customs at the time. Therefore, we can safely say that the prohibition of 
indiscriminate aerial bombardment on an undefended city and the principle of 
military objective which are provided by the Draft Rules, are international 
customary law [allowing for developments in terminology, this finding has much 
in common with the Opinion of the World Court], also from the point that they 
are in common with the principle in land and sea warfare. Further, since the 

175 



The Law of War 



distinction of land, sea and air warfare is made by the place and purpose of 
warfare, we think that there is also sufficient reason for argument that, regarding the 
aerial bombardment of a city on land, the laws and regulations respecting land warfare 
analogically apply since the aerial bombardment is made on land. 111 

This last statement prophetically foretells Article 49 of Protocol I, which is 
part of the Section (Part IV, Section I) relating to General Protection against 
Effects of Hostilities, and is itself concerned with the definition of attacks and 
scope of application. By paragraph 3, " [t] he provisions of this Section apply to 
any land, air or sea warfare which may affect the civilian population, 
individual civilians or civilian objects on land. They further apply to all 
attacks from the sea or from the air against objectives on land but do not 
otherwise affect the rules of international law applicable in armed conflict at 
sea or in the air." 

From what has been said herein, it is clear that since earliest times there 
has been recognition that humanity and the future survival of society demand 
that limitations be placed upon the means and methods of warfare, and that 
this remains the case today, whether the hostilities take place in international 
or non-international conflicts. As is made clear by the Martens Clause, which 
the World Court has indicated is just as significant today as it was when 
Martens introduced it, when seeking the law of war it is not enough to look 
merely at the written documents which have been drawn up and accepted by 
States as treaties. These may be considered as reflecting what has developed 
in practice as representing what States are prepared to impose upon their 
armed forces by way o{ restrictions on their freedom of action. Although it 
may not always be easy to ascertain what are claimed to be the customary 
rules in this regard, the principles of humanity and the dictates of public 
conscience, taken together with consideration of the accepted practices of 
the most significant military forces, are probably sufficiently well known and 
accepted to provide the guidance necessary to understand what is meant by 
those terms. Despite the fact that modern tribal wars seem to suggest that 
what was formerly regarded as being almost universally accepted behavior 
may not now be so considered, it may be suggested that the principles referred 
to are no more or less than what Article 38 of the Statute of the International 
Court of Justice refers to as general principles of law recognized by civilized 
nations — even though they may be nothing more than the principles which 
"we and our friends, all of whom are civilized," generally recognize as 
constituting principles of law and as such binding! 



176 



Leslie Green 



Notes 

This paper is based on an article orginially published in 1994 Finnish Year Book of 
International Law 93. 

1. CLAUSEWITZ, On WAR, bk. I, ch. 1, para. 2; ch. 2, p. 90; ch. 1, paras. 2 &3 (Howard & 
Paret eds., 1976) (empasis in original). 

2. Deft of Defense, Report to Congress, Conduct of the Persian Gulf War, 

Apr. 10, 1992, app. O, reprinted in 31 I.L.M. 612, 615 (1992). 

3. See, e.g., RECOUT, La DOCTRINE DE LA GUERRE JUSTE (1935) ; Santoni, Nurturing the 
Institution of War: Just War Theory's Justifications and Accommodations, in HlNDE, THE 

Institutions of War (1991) ; Walzer, Just and Unjust Wars (1977). 

4. It was rare "that a good man should be found willing to employ wicked means." THE 

Discourses, bk. I, ch. xviii (1532). 

5. Machiavelli, The Prince xxvi (1513). 

6. Treaty of Versailles, 1919, ch. 1, 12 B.F.S.P. 1; 13 AM. J. INTL L. 2 (Supp. 1919); 2 

Israel, Major Peace Treaties of Modern History, 1648-1967, at 1265 (1967). 

7. See 1 FERENCZ, DEFINING INTERNATIONAL AGGRESSION 77 (1979). 

8. Id. at 124. 

9. Id. at 132. 

10. Judgment, 1945, HMSO, Cmd. 6964, 39-41 (1946); 41 AM. J. INTL L. 218-20 (1947); 
FERENCZ, supra note 7, at 486-8. 

11. Treaty Providing for the Renunciation of War as an Instrument of National Policy, 
Aug. 27, 1928, art. 1, 94 L.N.T.S. 57, T.I.A.S. No. 796. 

12. Reprinted in 29 AM. J. INT'LL.93 (1935). 

13. 1945. 82 U.N.T.S. 280, 59 Stat. 1544, reprinted in THE LAWS OF ARMED CONFLICTS 
911 (Schindler& Toman eds., 1988). 

14. Res. 95 (I), 1946, reprinted in id. at 921. 

15. 1950. Reprinted in id. at 923. 

16. See, e.g., DlNSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 182-7 (1994). 

17. Id. at 179-82. 

18. See, e.g., Samuel 1:15, wherein the prophet himself kills Agag. 

19. Deuteronomy 20: 10-14, 19-20. 

20. Roberts, Judaic Sources and Views on the Laws of War, 37 NAVAL L.R. 221, 231 (1988); 
see also Green, The Judaic Contribution to Human Rights, 28 CAN. Y.B. INT'L L. 3 (1990). 

21. Protocol Additional to the Geneva Conventions of Aug. 12, 1949 and Relating to the 
Protection of Victims of International Armed Conflicts, June 10, 1977, art. 54, reprinted in 
Schindler & Toman, supra note 13, at 621 [hereafter Protocol I]. 

22. Proverbs 24: 21. 

23. Proverbs 25: 21; 2 Kings 6: 22-23. 

24. Roberts, supra note 20, at 233. 

25. Written about the sixth century B.C. (Griffith trans., 1963) at 78-9. 

26. Keegan, A History of Warfare, citing Creel, The Origin of Statecraft in 
China 257, 265 (1970). 

27. Sanskrit epic composed in the third century B.C. 

28. Epic Sanskrit poem based on Hindu ideals, probably composed between 200 B.C. and 
A.D. 200. 

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The Law of War 



29. It was not until 1980 (with Protocols II and III annexed to the Convention on 
Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed 
to be Excessively Injurious or to Have Indiscriminate Effects [Schindler & Toman, supra note 13, 
at 185]) that booby traps and incendiaries were placed under any form of restriction. 

30. See infra for a discussion of weapons considered anathema to the Church. 

31. See, e.g., Fenrick, The Rule of Proportionality and Protocol I in Conventional Warfare, 98 

Mil. L. Rev. (1982). 

32. It is not always easy to determine whether the enemy is retreating or merely 
withdrawing to re-form. 

33. Act 4, Scene 7, 11.5-10. This statement relates to Henry's order to kill the French 
prisoners as a reprisal for the slaughter of the "boys." Shakespeare, seemingly, based his account 
on Holinshed's Chronicles, but a somewhat different version is found in VATTEL, LE DROIT DES 
GENS, liv. Ill, ch. VIII, s. 151 (1758). See also, generally, MERON, HENRY'S WARS AND 
SHAKESPEARE'S LAWS (1993). 

34. See, e.g., GREEN, ESSAYS ON THE MODERN LAW OF WAR, ch. V (War Law and the 
Medical Profession) (1985). 

35. All these examples are taken from Armour, Customs and Warfare in Ancient India, 8 

Transactions of the Grotius Society 71, 73-7, 81 (1922). 

36. These terms are given to the two branches of the law of armed conflict, the Hague Law 
being the Conventions of 1899 and 1907, while the Geneva law refers to the Red Cross 
Conventions of 1949 as amended in 1977. The two together are commonly described as 
"humanitarian law." 

37. 3 Gibbon, The Decline and Fall of the Roman Empire, 1776-1788, ch. 34, at 
450 (Bury ed., 1909). 

38. See, e.g., HOMER, THE ODYSSEY, 34, bk. 1, 11. 260-63, 221-3 (Lattimore trans., 1965). 

39. A similar tendency is to be found in modern civil wars. 

40. 2 Phillipson, The International Law and Custom of Ancient Greece and 

ROME 195, 207-12, 221-3 (1911); see also THUCYDIDES, THE PELEPONNESIAN WAR 79 //. 
(Hobbes trans., 1676). 

41. See, GERMAN WAR BOOK, infra note 125, on use of colonial African troops in 
European wars. 

42. Tacitus, Annals at i, 61. 

43. This is the term used by Tacitus. 

44. This does not accord with the treatment meted out to Britain after the defeat of 
Boudicca (or Boadicea) . 

45. Livy, History of Rome at v, 27. 

46. Cicero, De officiis at 1, 1 1 . 

47. Phillipson, supra note 40, at 227, 228-30. 

48. Alib Hasan al Muttaqui, 4 Book of Kanzuuumman 472 (1949); see also 

SHAYBANI'S SlYAR, THE ISLAMIC LAW OF NATIONS, sec. 1711 (c. early ninth century, 
Khadduri trans., 1966). 

49. Id. at sees. 29-32, 47, 81, 110-11. 

50. Khadduri, supra note 48, 13, sees. 2-38, 44, 54-60, 148-371. 

51. Draper, The Interaction of Christianity and Chivalry in the Historical Development of the 
Law of War, 5 INTL REV. RED CROSS 3, 19 (1965). Compare the attitude of Kapitanleutnant 
(Ing.) Lenz at his trial for war crimes in 1945, The Peleus Trial, 1 UNWCC, Law Reports of 
Trials of War Criminals 1, 3-4. 

52. WRIGHT, A STUDY OF War 81 (1965). 



178 



Leslie Green 

53. For a satirical comment on the appearance of these warriors, see ERASMUS, BELLUM 
(1515) 17 (Imprint Soc. ed., 1972). 

54- BELLI, DE RE MILITARI ET BELLI TRACTATUS (1563), pt. Ill, ch. Ill, p. 29 (Carnegie 
trans., 1936), citing the CORPUS JURIS CANONICI (1500). See also THE ALEX1AD OF ANNA 
CONNENA 316-7 (Sewter trans., 1969): "The crossbow is a weapon of the barbarians ... a truly 
diabolical machine." 

55. Treece &. Oakeshott, Fighting Men— How Men Have Fought through the 
Ages 207-8 (1963). 

56. BELLI, supra note 54, at 29. 

57. See, e.g., KEEN, CHIVALRY (1984) ; see also Gardot, Le droit de la Guerre dans VOeuvre des 
Capitaines Francais du XVI Siecle, 72 HAGUE RECUEIL397, 416 (1948). 

58. See, e.g., KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 27 (1965); see also 

Contamine, Law in the Middle Ages 270-7 (Eng. trans., 1984); 2 Ward, The 
Foundation and History of the Law of Nations in Europe, ch. XIV ("Of the influence 

of chivalry") (1795). 

59. KEEN, supra note 58, at 34. 

60. Id. at 1. 

61. SHAKESPEARE, HENRY V, act 4, scene 7, 11. 5-10. See generally MERON, HENRY'S Wars 

AND SHAKESPEARE'S LAWS (1993). 

62. Literally "skinner," armed bands of free companies. KEEN, LAWS, supra note 58, at 192; 
see also id. at 97-100. 

63. See 2 SCHWARZENBERGER, 2 INTERNATIONAL LAW: THE LAW OF ARMED 

Conflict, ch. 39 (1968). 

64. Winthrop, Military Law and Precedents, app. II (1886). 

65. See, e.g., THE ENGLISH LAWS AND ORDINANCES OF WARRE 163, in 1 CM. CLODE, 

Military Forces of the Crown, app.VI (1869) . 

66. de Taube, L'apport de Byzance au Developpement de droit international occidental, 67 

Hague Recueil 237 (1939). 

67. Gardot, supra note 57, at 452-3, 469, citing FOURQUEVAUX, LA DISCIPLINE MILITAIRE 
(1592). 

68. GENTILI, DE JURE BELLI, lib. II, cap. xxi, pp. 275, 251 (1612) (Carnegie trans., 1933). 

69. Schindler & Toman, supra note 13, at 3, art. 37. 

70. Res. 3318 (XXIX), art. 5, reprinted in id. at 295. 

71. Protocol I, supra note 21, art. 76. 

72. BELLI, supra note 54, pt. VII, cap. Ill, at 34. 

73. Butler &. Maccoby, The Development of International Law 134 (1928). 

74. Id. at 187, n. 28. 

75. Geneva Convention for the Amelioration of the Condition of the Wounded in Armies 
in the Field, 1864, reprinted in Schindler and Toman, supra note 13, at 285. 

76. Butler & Maccoby, supra note 73, at 149-51. 

77. For a general discussion of "War Law and the Medical Profession," see GREEN, ESSAYS, 
supra note 34, ch. VI. 

78. On these distinctions and practices, see generally Stacey, The Age of Chivalry, in 

Howard et al., The Laws of War 27, 32-3 (1994). 

79. GENTILI, supra note 68, lib. II, cap. XVII, XVIII at 216-40. 

80. Id., lib. II, cap. Ill, VI, XXIII, at 142-4, 159, 272. 

81. GROTIUS, DE JURE BELLI AC PACIS (1625), lib. Ill, cap. IV, sees, xviii, ix, x (Eng. trans., 
1738), at 570, 564, 565; (Carnegie trans., 1925), at 654, 648, 649. 

179 



The Law of War 



82. Id., cap. XI. 

83. Id., sec. xix, at 649, 743. 

84. Id. at 684-5, 788-9. See also Grumpelt (Scuttled U-boats) Trial, 13 I.L.R. 309 (1946). 

85. Id., sees, iv, v, pp. 686, 790-1. 

86. VATTEL, LE DROIT DES GENS (1798), liv. Ill, c.VIII, sees. 138-37 (Carnegie trans., 
1916) (emphasis added). See also RUDDY, INTERNATIONAL LAW IN THE ENLIGHTENMENT 
245-56 (1975). 

87. GENTILI, supra note 68, sec. 39 at 280. 

88. Not until the Prisoners of War Convention, 1929, art. 2, reprinted in Schindler & 
Toman, supra note 13, at 339, was this principle embodied in treaty law. 

89. GENTILI, supra note 68, ss. 140, 142, 145-7, 155-7 at 280-3, 287, 289. 

90. VATTEL, supra note 86, liv. Ill, c.VIII, sec. 156, ch. IX, sees. 172-3, pp. 289, 294-5. 

91. Protocol I, supra note 21. 

92. In 1954 a Convention for the Protection of Cultural Property in the Event of Armed 
Conflict was adopted. Reprinted in Schindler & Toman, supra note 13, at 745. 

93. General Orders No. 100, Apr. 24, 1863, reprinted in Schindler & Toman, supra note 13, 
at 3 {hereinafter Lieber Code] ; see also Baxter, The First Modem Codification of the Law of War, 3 

InplRev. Red Cross 171 (1963). 

94. Lieber, Political Ethics 657 (1838). 

95. Lieber Code, supra note 93, arts. 16, 2, 37, 44, 47. 

96. Id., art. 59. 

97. See, e.g., Lauterpacht, Rules of Warfare in an Unlawful War, in LAW AND POLITICS IN 

the International Community 89 (Lipsky ed., 1953). 

98. Modem civil wars, such as those in Bosnia or Rwanda, would appear to give the lie to 
this assertion. 

99. Lieber Code, supra note 93, arts. 67-68 (emphasis added). 

100. Holland, The Laws of War on Land 72-3 (1908). 

101. see, e.g., d'amato, the concept of custom in international law (1971); 

Akehurst, The Hierarchy of the Sources of International Law, 47 BRIT. Y.B. INPL L. 273 (1974-1975); 

Villiger, Customary International Law and Treaties (1985) (esp. Part III). 

102. Schindler & Toman, supra note 13, at 787. 

103. Id. at 270. 

104. Id. at 101. 

105. The most "famous" of these is the "dumdum," invented by Great Britain at Dum-Dum, 
India. It was generally assumed that ordinary bullets, though they might kill, were not effective in 
stopping "the onrush of a hardy and fanatical savage." In 1903, Holland (Letter to THE TIMES, 
London May 2) , maintained that their use was not unlawful so far as the United Kingdom and 
United States were concerned [LETTERS ON WAR AND NEUTRALITY 53 (1909) ] ; "it having been 
found in the British frontier wars that the impact of an ordinary bullet did not give shock sufficient 
to stop the onrush of certain assailants, so that the suffering caused to such assailants by their 
expansion in the body was not useless, and did not bring them within the condemnation of 
explosive bullets by the Declaration of St. Petersburg," WESTLAKE, INTERNATIONAL LAW, pt. II 
(War) 78 (1913). The United Kingdom "withdrew Dum-Dum bullets during the South African 
War, and it is to be taken for granted that Great Britain will not in future make use of them in a war 
with civilized Powers," 2 OPPENHEIM, INTERNATIONAL LAW, sec. 112 (1st ed. 1906), leaving 
open whether he considered their use against "uncivilized" powers to be lawful. Now that many 
police forces are being permitted to use such explosive bullets against their own nationals, and 
since it is often argued that these weapons are less destructive than ordinary rounds, it may well be 



180 



Leslie Green 

that the ban will fall into desuetude, especially as other explosive weapons, like grenades and 
mines, are still permitted. 

106. Schindler & Toman, supra note 13, at 25 (emphasis added). 

107. Emphasis in original. 

108. See, e.g., BOTHEETAL, NEW RULES FOR VICTIMS OF ARMED CONFLICTS 195 (1982): 
"The Principle of Humanity complements the principle of necessity by forbidding those measures 
of violence which are not necessary (i.e., relevant and proportionate) to the achievement of a 
definite military objective." 

109. Schindler & Toman, supra note 13, at 35 (emphasis added). 

110. Such a rule would have been important for the Imperial Japanese Army, whose 
members regarded surrender or capture as the act of a coward not entitled to treatment as an 
honorable soldier. 

111. In fact, prior to the use of the atomic bombs in 1945, radio messages were broadcast to 
the Japanese authorities naming a number of cities likely to be heavily bombed and advising 
evacuation of the civilian populations. 

112. Does this mean that an unoccupied hospital, though marked with a Red Cross, is not 
protected? The Manual makes no reference to the status of civilian hospitals in a city subject to 
bombardment. 

113. Thus, the pressure methods used against members of the British Indian Army by the 
Japanese in World War II to compel them to join the Indian National Army were clearly 
contrary to the law of war. See Green, The Indian National Army Trials, 11 MODERN L. REV. 47 
(1948), and The Problems of a Wartime International Lawyer, 2 PACE Y.B. INT'L L. 93 (1989). 

114. Arts. 1, 3, 4, 6-10, 19, 32, 33, 35, 44, 47, 49, 61-3, 68, 70 (emphasis added). 

115. As has been seen, however, this is not completely correct, even though there may have 
been no written rules generally accepted. 

116. H.M.S.O., THE LAW OF WAR ON LAND (Part III of the Manual of Military Law) 1-3 
(1958). 

117. Deft of the Army, The Law of Land Warfare (FM [Field Manual] 27-10) 

(1956). But see paras. 137, 630, 633. 

118. In practice, most States ensure that their military advisers are apprised of any proposals 
that may be suggested for inclusion in a treaty concerning armed conflict. Many delegations to 
such conferences include representatives of the armed forces. 

119. Para. 4. 

120. 94 L.N.T.S. 65; Schindler & Toman, supra note 13, at 115. 

121. Naval War College, International Law Situations 106 (1935). See also id. at 
102; Hyde, 3 International Law Chiefly as Interpreted and Applied by the United 
States 1820 (1947). 

122. DEPT. OF STATE BULL, vol.VIII, no. 207, June 12, 1943 (emphasis added). 

123. FM 27-10, supra note 117, change 1, July 15, 1976. 
124- See supra note 1 . 

125. GERMAN WAR BOOK 52-4 (Morgan trans., 1915). 

126. Nuremberg Judgment, supra note 10, at 91. 

1 27. For a general discussion on the law concerning aerial warfare, see GREEN, ESSAYS, supra 
note 34, ch.VII (1985). 

128. Supra note 1 26, at 65, with regard to the Hague, and 48 with regard to Geneva. See also 
41 AM. J. INT'LL. 177, 248-9 (1947) &48 AM. J. INT'L L. 228-9 (1954) respectively. 

129. Schindler & Toman, supra note 13, at 63 (emphasis added). 

181 



The Law of War 



130. See, e.g., the English prize cases, The Mowe [1915] and The Blonde [1922], A.C. 313, 
in each of which Convention VI (Status of Merchant Ships at Outbreak of Hostilities), reprinted 
in Schindler & Toman, supra note 13, at 791, was applied, though Serbia and Montenegro were 
not parties. 

131. E.g., Hague IV, Regulations Respecting the Laws and Customs of War on Land: 
prisoners of war (arts. 4 & 7); the ban on use of poison or denial of quarter (art. 23); or denying 
protection to a flag of truce (art. 32). 

132. See text to note 128 supra. 

133. Common arts. 1 & 2. 

134. THE TIMES (London), June 24, 1997. 

135. See, e.g., Civilian War Claimants' Association v. The King [1932] A.C. 14. 

136. (1951). Reprinted in 46 AM. J. INPLL. (Supp.) 71 (1952). "Except as otherwise provided 
in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers and 
their nationals arising out of any actions taken by Japan and its nationals in the course of the 
prosecution of the war." Id., art. 14 (V) (b) (emphasis added). See also Green, Making Peace With 
japan, 6 Y.B. WORLD AFF. 176 (1952). 

137. As to German trials held in Leipzig after WW I against German accused, these were in 
accordance with Article 228 of the Treaty of Versailles, the German authorities having declined 
to hand them over to the Allied Powers in accordance with the Treaty. 

138. See, e.g., the German trial of Captain Fryatt (1916) for attempting to ram a German 
U-boat while captain of a merchant ship. GARNER, 1 INTERNATIONAL LAW AND THE WORLD 
WAR (1920), and of Nurse Edith Cavell, who, in breach of her protected status as a medical 
person, assisted in the escape of Allied personnel. Nurse Cavell was not tried for a war crime as 
such but for a breach of the German Military Penal Code, to which she was not strictly amenable. 
Id. at 97. See also Llandovery Castle (1923), in which U-boat officers were tried by a German 
tribunal for, "contrary to international law," firing upon and killing survivors of an unlawfully 
torpedoed hospital ship. CAMERON, THE PELEUS TRIAL, app. IX (1948); Trial of Eck (Peleus 
trial) (1945), id.; and the case of Re Klein for killing civilian nationals contrary to international 
law, 1T.W.C. 46(1945). 

139. See, e.g., Drierwalde Case, 1 T.W.C. 81 (1946), for killing captured RAF personnel 
contrary to art. 23 (c) . 

140. See Muller's Case and Neumann's Case at Leipzig, H.M.S.O.,Cmd. 1422 (1921), at 26, 
36, for a finding of guilty of ill-treating prisoners of war contrary to German Penal and Military 
Penal Codes; see also the U.S. trials of personnel accused of crimes against prisoners or enemy 
civilians during Korean and Vietnam conflicts, e.g., U.S. v. Kennan 14 C.M.R. 742 (1954); U.S. 
v. Calley 46 C.M.R. 19 (1969-1971), 1 M.J. 248 (1973). For instances of trials by German 
military courts of members of the German armed forces, with executions in some cases for 
offenses against Allied personnel, both civilian and military, during World War II, see ZAYAS, 

Wehrmacht War Crimes Bureau 1939-1945, 18-22 (1989). 

141. (1945). Reprinted in Schindler & Toman, supra note 13, at 911. 

142. Res. 95 (I), 1946, reprinted in id. at 921. 

143. Rat 923. 

144- See e.g, Green, Command Responsibility in International Humanitarian Law, 5 INPL L. & 
CONTEMP. PROBS. 319 (1995); Green, War Crimes: Crimes against Humanity and Command 
Responsibility, 50 NAVAL WAR COLL. REV. 26 (1997); Parks, Command Responsibility for War 
Crimes, 62 MIL. L. REV. 1 (1973); Rosenne, War Crimes and State Responsibility, in WAR CRIMES 
IN INTERNATIONAL LAW 65 (EHnstein & Tabory eds., 1996). 



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Leslie Green 



145. During the final session of the Conference, some States, e.g. Canada, made statements 
indicating that they considered the traditional law denying superior orders as a defense, while 
accepting it by way of mitigation, to be good law. LEVIE, PROTECTION OF WAR VICTIMS, Supp. 
40-1 (1985). 

146. Protocol I, supra note 21, arts. 86 & 87. 

147. See, e.g., GREEN, ESSAYS, supra note 34, ch. 4; Draper, The Role of Legal Advisers in 
Armed Services, 18 INTL REV. RED CROSS 6 (1978). 

148. See, e. g., Buhler Case Polish Supreme National Tribunal 14 T.W.C. 23 (1948). See also 
R. v. Finta 112 D.L.R. (4th) 513 (Sup. Ct. Can.) (1990). 

149. See, e.g., Prosecutor v. DuskoTadic Case No. IT-94-1-T (1997). See also Green, Drazen 
Erdemovit: The Hague Tribunal in Action, 10 LEIDEN J.lNT'LL. 363 (1997), and Dinstein, Crimes 
against Humanity, in THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF THE 2 1ST 
CENTURY 891 (Makarczyk ed., 1997). 

150. Lists of some of these are to be found in both the British and U.S. manuals, supra notes 
116 & 117, paras. 110, 111, and 34, 37 respectively. 

151. GERMAN WAR BOOK, supra note 125, at 66-7. 

152. Geneva Conventions, 1949, (I, art. 12; II, art. 12; III, art. 16; IV, art. 13; Protocol I, art. 
75) which also forbids any discrimination on grounds of "language, national or social origin, 
wealth, birth or other status, or any other similar criteria. n 

153. See, e.g., Green, The Status of Mercenaries in International La<w, in ESSAYS, supra note 34, 
ch. IX, and 8 ISR. Y.B. HUM. RTS. 9 (1978). See also Burmester, The Recruitment and Use of 
Mercenaries in Armed Conflicts, 72 AM. J. INT'L L. 37 (1978). 

154- Schindler & Toman, supra note 13, at 179, 185. 1996 amendment reprintedin 35 I.L.M. 
1206, 1 209 (1996) . In 1995 a further Protocol was added to the Convention regulating the use of 
laser weapons. Protocol IV on Blinding Laser Weapons, Oct. 13, 1995, 31 I.L.M. 1218 (1996). 

155. Schindler & Toman, supra note 13, at 495. 

156. Supra note 149, Judgment, May 7, 1997. 

157. Protocol I, supra note 21, at 621. 

158. Schindler & Toman, supra note 13, at 689. 

159. Rwanda, S.C. Res. 955 (Annex), 1994, reprinted in 33 I.L.M. 1598 (1994); Yugoslavia, 
S.C. Res. 827 (Annex), 1993. 

160. See note 149 supra. 

161. Protocol I, supra note 21, art. 56. 

162. 35 I.L.M. 809 (1996) 

163. Id., paras. 74, 78. 

164. In view of the effects of the nuclear weapon, this implies that even tactical weapons used 
in the field are likely to be considered illegal, as inhumane. In this connection, see id., para. 94- 

165. Id., paras. 78,79. 

166. Id., para. 88. 

167. Id., para. 95. 

168. Id., para. 96. 

169. Schindler & Toman, supra note 13, at 207. 

170. Id. See also SPAIGHT, AIR POWER AND WAR RIGHTS 42-3 (1947); 2 OPPENHEIM, 
INTERNATIONAL LAW 519 (7th ed., Lauterpacht ed., 1952); 2 SCHWARZENBERGER, 

International Law 153 (1968); 1 Levie, The Code of International Armed 
Conflict 207-26 (1985). 

171. Shimoda v. Japan, 8 JAP. ANN. INTL L. 212, 237-8 (1963); 32 I.L.R. 626 , 631 (1966) 
(emphasis in original) . 

183 



184 



VII 



The Law of Weaponry 
at the Start of the New Millennium 



Christopher Greenwood 



I. Introduction 

HE LAW OF WEAPONRY, which seeks to regulate both the means and 
the methods of warfare, is one of the oldest and best established areas of 
the laws of war. 1 It is also widely regarded as one of the least effective. The 
remarkable progress which has been made in the development of weaponry and 
methods o{ warfare during the twentieth century has been unmatched by 
development in the law. The result is that much of the law and the legal 
literature in this field has a distinctly anachronistic feel. For example, the 
prohibition of weapons causing unnecessary suffering 2 was first established over 
a century ago but remains part o( the law and was recently applied by the 
International Court of Justice in considering the legality of nuclear weapons. 3 
Yet a 1973 survey o( the law on weaponry by the United Nations Secretariat 
cited bayonets or lances with barbs, irregular shaped bullets, and projectiles 
filled with glass as examples of weapons considered to be outlawed by the 
unnecessary suffering principle. 4 Scarcely standard weapons at the beginning of 
the twentieth century, these were museum pieces by its end. Similarly, leading 
text books refer to the unnecessary suffering principle meaning that "cannons 



The Law of Weaponry 



must not be loaded with chain shot, crossbar shot, red-hot balls, and the like." 5 
Such examples suggest that the law is firmly rooted in the nineteenth century. 

Yet it would be wrong to write off the law on weaponry as unimportant in 
modern warfare. The twentieth century has seen the adoption of prohibitions on 
two of the century's most destructive innovations in weaponry — chemical and 
bacteriological weapons. 6 In the closing years of the century, there has been a 
burst of activity, unprecedented in this area since the Hague Peace Conferences 
of 1899 and 1907, which has produced treaties on blinding laser weapons 7 and 
anti-personnel land mines, 8 as well as a treaty which greatly strengthens the ban 
on chemical weapons. In addition, the evolution of customary international law 
regarding the protection of the environment in time of armed conflict has had 
effects on the law of weaponry, while the discussion of the legality of nuclear 
weapons by the International Court of Justice, though inconclusive and 
unsatisfactory in a number of respects, demonstrated that principles established 
in the last century are capable of being applied well into the next. 9 Finally, wider 
developments in the laws of armed conflict, in particular the development of the 
law by the ad hoc tribunals for Rwanda and the Former Yugoslavia and the 
negotiations for the establishment o{ a permanent international criminal court, 
have had repercussions for the law on weaponry. 10 

It is therefore a good time at which to take stock oi the law relating to 
weaponry and to consider how that law might develop in the early years oi the 
new millennium. If that is to be done, however, it is important to have a clear 
understanding of the objectives which the law seeks to achieve in this area and 
the means by which it has sought, so far, to secure them. Among the reasons why 
the law on weaponry is so often seen as ineffective are that its objectives are 
misunderstood and unrealistic expectations are entertained as to what can be 
achieved. The present paper will accordingly begin with a brief account of the 
development oi the law (Part II) and an analysis of its objectives (Part III). Part 
IV will then assess the law of weaponry as it stands at the end of the twentieth 
century. That law does not, however, operate in isolation, and Part V will 
therefore consider the influence of other parts of international law, in particular 
those concerned with the restriction of the resort to force, the protection of 
human rights, and the environment, which may have an impact upon the use of 
weapons in conflicts. Finally, Part VI will consider how the law is likely to 
develop in the foreseeable future — and how it might be strengthened. 

II. The Development of the Law Relating to Weaponry 

The prohibition of certain weapons, particularly poisonous weapons, can be 
traced back many centuries. The contemporary law on weapons and the 

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methods of warfare, however, began to develop only in the mid-nineteenth 
century. The Lieber Code 11 mentioned the prohibition on the use of poison 
and, in its emphasis on the principle of necessity, contained an early, albeit 
implicit, statement of the prohibition of weapons calculated to cause 
unnecessary suffering. 12 The draft declaration drawn up by the Brussels 
Conference in 1874 and the Oxford Manual prepared by the Institute of 
International Law in 1880 both contained provisions to the effect that a 
belligerent State did not possess an unlimited choice of the methods and means 
of war and prohibited the use of poison, treachery, and weapons causing 
needless suffering. 14 It is clear, therefore, that by the late nineteenth century 
there was considerable support for the proposition that international law 
imposed some constraints upon the weaponry which a belligerent might 
employ. 

The first treaty to that effect was the St. Petersburg Declaration of 1868, 
which outlawed the employment in hostilities between parties to the 
Declaration of any "projectile of a weight below 400 grammes, which is either 
explosive or charged with fulminating or inflammable substances." 15 While the 
specific prohibition introduced by the Declaration is still in force, a more 
important feature of the Declaration is the statement in the Preamble of the 
reasoning behind the specific prohibition, namely: 

That the only legitimate object which States should endeavour to accomplish 
during war is to weaken the military forces of the enemy; 

That for this purpose it is sufficient to disable the greatest possible number of 
men; 

That this object would be exceeded by the employment of arms which uselessly 
aggravate the sufferings of disabled men or render their death inevitable; [and] 

That the employment of such arms would, therefore, be contrary to the laws of 
humanity. 

It is this statement which provided the first recognition in treaty form of the 
prohibition of weapons calculated to cause unnecessary suffering. 

The Hague Peace Conferences of 1899 and 1907 built upon these 
foundations in a number of agreements. Thus, the Regulations on the Laws and 
Customs of War on Land, adopted at the 1907 Conference, 16 provide that "the 
right of belligerents to adopt means of injuring the enemy is not unlimited" 
(Article 22) and go on to declare that it is "especially forbidden" "to employ 

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arms, projectiles, or material calculated to cause unnecessary suffering" 
(Article 23(e)). The Peace Conferences also adopted a number of other treaty 
provisions relating to weaponry and methods of warfare: 

• Hague Declaration No. 2, 1899, banning the use of projectiles the sole 
object of which is the diffusion of asphyxiating or deleterious gases; 17 

• Hague Declaration No. 3, 1899, prohibiting the use of bullets which 
expand or flatten easily in the body (especially the so-called soft-headed or 
"dum-dum" bullets); 18 

• Hague Declaration No. 4, 1899, prohibiting for a period of five years the 
launching oi projectiles and explosives from balloons and other methods of a 
similar nature; 19 

• Hague Regulations, 1907, Article 23(a), prohibiting the use of poison or 
poisoned weapons; 20 

• Hague Convention No. VIII, 1907, restricting the use of automatic 
submarine contact mines. 21 

Subsequent years saw the adoption of the 1925 Geneva Chemical and 
Bacteriological Weapons Protocol, prohibiting the use of asphyxiating, 
poisonous or other gases, all analogous liquids, materials or devices, and 
bacteriological methods of warfare. 22 This prohibition on the use of chemical 
and biological weapons was reinforced many years later by the 1972 
Convention on the Prohibition of Development, Production and Stockpiling 
oi Bacteriological and Toxin Weapons, which prohibited the possession of 
bacteriological and toxin weapons, 23 and the 1993 Chemical Weapons 
Convention, which prohibited the possession and use as a means of warfare of 
chemical weapons. 24 Neither the 1949 Geneva Conventions, 25 nor the two 
Additional Protocols to those Conventions, adopted in 1977, 26 deal with 
specific weapons. Additional Protocol I does, however, contain a restatement 
o( the principles that belligerents do not have an unlimited right to choose the 
methods and means of warfare and may not employ methods or means of 
warfare of a nature to cause unnecessary suffering, 27 and also codifies important 
principles of customary international law regarding the protection o( civilian 
life and property which have significant consequences for the freedom of States 
to select the methods and means of warfare. 28 In addition, the Protocol 
contains some innovative provisions on the protection of the environment in 
time of armed conflict. 29 The protection of the environment was also addressed 
in the 1977 United Nations Convention on the Prohibition of Military or any 
Other Hostile Use of Environmental Modification Techniques, which 
prohibited the use of weapons intended to change the environment through 
the deliberate manipulation of natural processes. 30 

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Finally, a United Nations conference held in 1980 adopted the 1981 United 
Nations Convention on Prohibitions or Restrictions on the Use of Certain 
Conventional Weapons, the three original Protocols to which prohibited the 
use of weapons which injured with fragments which cannot be detected by 
x-rays (Protocol I) and imposed certain restrictions on the use of mines and 
booby traps (Protocol II) and incendiary weapons (Protocol III). 31 A 
subsequent review conference in 1995-96 adopted an amended Protocol II on 
mines (which will be superseded for some States by the 1997 Land Mines 
Convention) and a new Protocol IV on laser weapons. 32 

III. The Objectives of the Law Relating to Weaponry 

As the law relating to weaponry is a part of the law o{ armed conflict, it is 
therefore to be expected that its objectives reflect those of the law of armed 
conflict as a whole. The law of armed conflict (or international humanitarian 
law) is primarily concerned with preserving, as far as possible, certain core 
humanitarian values during hostilities. It is not designed to prevent or deter 
States from resorting to force, and the constraints which it imposes must not, 
therefore, be incompatible with the effective conduct of hostilities. Every State 
has an undoubted right of self-defense under international law and is entitled 
to use force in order to vindicate that right. 33 While the law o{ armed conflict 
imposes limitations upon what a State may do in the exercise of that right, it is 
not intended to prevent the effective exercise of the right. 34 The law of armed 
conflict is thus based upon the assumption that States engaged in an armed 
conflict will necessarily inflict death and injury upon persons and damage to 
property, and seeks to limit these effects by preventing the infliction of 
suffering and damage which is unnecessary because it serves no useful military 
purpose. The law goes beyond that, however, for it requires that, even where 
destruction does have a military purpose, a balance be struck between the 
attainment of that purpose and other values, such as the preservation of 
civilian life; it prohibits the carrying out of an attack when the military benefit 
which maybe expected to ensue is outweighed by the damage to those values. 

The principal objective of the law of weaponry is the protection of these 
values. Thus, the prohibition of indiscriminate weapons and methods of 
warfare is designed to serve the objective of distinguishing between civilians 
and civilian objects, on the one hand, and combatants and military objectives, 
on the other, and protecting the former. Similarly, the principle that 
belligerents may not employ weapons or methods of warfare of a nature to 
cause unnecessary suffering serves the objective of protecting even combatants 

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The Law of Weaponry 



from suffering and death which is not necessary for the achievement of 
legitimate military goals. The principle, which has only recently become a part 
of the law of weaponry, that limits the use of weapons and methods of warfare 
which have a substantial adverse effect upon the natural environment 35 also 
has as its objective the prevention of wanton, unnecessary destruction and the 
balancing of military needs against the value of environmental preservation. 

To that extent, the law of weaponry forms part of an intellectually coherent 
system. The law has, however, also been used to achieve other objectives which 
do not so obviously form part of that system. For example, the prohibition of 
perfidy, which has implications for the choice of methods of warfare (if not the 
weapons themselves), is designed to serve two very different objectives. In part, 
it seeks to preserve core humanitarian values by prohibiting the feigning of 
surrender, protected status, or wounds, because such feints endanger those 
who genuinely seek to surrender, possess protected status, or are wounded, and 
whom the law seeks to protect. The prohibition of perfidy has also, however, 
been used to protect able-bodied combatants from attacks which endanger no 
one else but which are seen as somehow "unfair." The objective there is the 
quite distinct one of preserving certain military or chivalric values. Thus, it is 
easy to see that the prohibition on using the Red Cross and Red Crescent 
emblems as a shield for military operations 36 serves a humanitarian objective, 
since abuse of the emblem will endanger genuine medical facilities and 
personnel. On the other hand, the prohibition on making use of the emblems 
or uniforms of an adversary while engaging in attacks or in order to assist 
military operations serves no humanitarian purpose whatsoever; rather, it 
seeks to ensure that one party to a conflict does not treat the other in a way 
which is perceived to be contrary to concepts of fair dealing. 37 

In addition, the humanitarian objectives o{ the law of weaponry have 
frequently been intertwined with broader concerns about armaments. Thus, 
the First Hague Peace Conference in 1899 was convened in order to discuss 
questions of peaceful settlement of disputes, disarmament, and the laws of war, 
the Russian Government whose initiative had led to the convening of the 
Conference being particularly concerned to ensure that limits were placed on 
the introduction of new weapons and the consequent increases in military 
expenditure which these would entail. In adopting the three declarations 
banning the use of specific weapons, 38 the Conference clearly had that 
consideration in mind, 39 but was also influenced by humanitarian 
considerations. Each o{ the three Declarations contained a statement to the 
effect that the Conference had been "inspired by the sentiments" of the 1868 
St. Petersburg Declaration, while the debates reveal that humanitarian 

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Christopher Greenwood 



considerations were to the fore in the discussions. 40 Similarly, the attempts to rid 
the world of chemical and biological weapons which have lasted throughout the 
twentieth century have involved a mixture of humanitarian and disarmament 
considerations, the 1993 Chemical Weapons Convention being couched very 
much in the form of a disarmament agreement with its ban on possession as well 
as use of chemical weapons and its complex verification system. 

There is, of course, no reason why humanitarian and disarmament 
considerations should not be combined. The outlawing of a weapon as cruel 
and often indiscriminate as poisonous gas serves the values of disarmament and 
humanity and the employment of disarmament mechanisms for verification 
makes a ban far more effective than a simple prohibition on use. It should, 
however, be borne in mind that the objectives are different. Unlike the law of 
armed conflict, the disarmament process is intended to make war less likely by 
achieving a reduction in armaments, irrespective o{ whether the particular 
weapons involved are more or less cruel or indiscriminate than others which 
may not be the subject of disarmament negotiations. 

Finally, in considering the objectives which the law of weaponry is designed to 
serve, it is worth remembering that the process by which those objectives have 
been applied has not always been one of strict rationality. Consideration oi 
whether a particular weapon or method of warfare causes unnecessary suffering or 
excessive harm to civilians requires a comparison between different weapons and 
methods of warfare. Yet the process of comparison has seldom been a scientific — 
or even a particularly informed — one. Deep-seated taboos found in many 
societies regarding certain types of injury or means of inflicting harm have meant 
that certain types of weapon (those employing or causing fire, for example) have 
been treated as particularly horrific, without any serious attempt being made to 
compare their effects with those produced by other weapons. 

Moreover, a mixture of humanitarian and disarmament considerations has 
all too often been used to disguise the pursuit of more self-interested objectives. 
The attempts to ban the crossbow in the twelfth century were the product of 
concern not only with the injuries which a crossbow could inflict but also with 
the way in which this infantry weapon changed the balance of power between 
mounted knights and infantrymen of a far lower social standing. 42 Likewise, the 
British proposals eight hundred years later to ban the submarine and the naval 
mine owed more to the threat which those weapons posed to the supremacy of 
the Royal Navy's surface fleet than their challenge to the humanitarian values 
underlying the laws of armed conflict. As Captain (later Admiral) Mahan, one 
of the United States delegates to the 1899 Peace Conference, explained, new 
weapons have always been denounced as barbaric. 43 

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The haw of Weaponry 



IV. The Law of Weaponry at the End of the Twentieth Century 

It has already been seen that the law of weaponry consists of general 
principles, such as that prohibiting weapons of a nature to cause unnecessary 
suffering, and a number of rules prohibiting, or limiting the use oi, specific 
weapons or methods of warfare. While the relationship between the two is a 
close one, the specific provisions frequently being an extension of one or other 
of the general principles, the differences between them are sufficient to justify 
separate examination here. In particular, the general principles tend to refer to 
the effects produced by the use of weapons or methods of warfare, whereas the 
specific provisions usually concentrate upon the means employed. Section 1 of 
this Part will therefore consider the general principles, while Section 2 will 
examine some of the rules pertaining to specific weapons. Finally, Section 3 will 
consider the case of nuclear weapons. 

Before turning to the general principles, two preliminary matters call for 
comment. First, the law of weaponry — both general and specific — has been 
developed in the context oi armed conflicts between States. The treaty 
provisions have usually been applicable only in conflicts between the parties to 
the treaty concerned and even the general principles, which apply as part of 
customary law, have usually been seen as applicable only in international 
armed conflicts. That assumption is now being challenged. As will be seen, 
some of the most recent treaties on specific weapons, noticeably the 1993 
Chemical Weapons Convention and the two new agreements on land mines 
(the 1996 Amended Mines Protocol to the Conventional Weapons 
Convention and the 1997 Land Mines Convention) expressly apply to internal 
as well as international armed conflicts. 44 In addition, the Appeals Chamber of 
the International Criminal Tribunal for the Former Yugoslavia has held, in its 
decision in Prosecutor v. Tadic (Jurisdiction), that the customary international 
law applicable to internal armed conflicts is more extensive than had 
previously been supposed and, in particular, includes the customary rules 
regarding methods and means of warfare which apply in international armed 
conflicts. 45 As the Appeals Chamber put it: 

[E]lementary considerations of humanity and common sense make it 
preposterous that the use by States of weapons prohibited in armed conflicts 
between themselves be allowed when States try to put down rebellion by their 
own nationals on their own territory. What is inhumane, and consequently 
proscribed, in international wars, cannot but be inhumane and inadmissible in 
civil strife. 46 

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This aspect of the decision is controversial, not least because the issue of 
methods and means of warfare did not, in fact, arise on the facts of the Tadic 
case and there is little evidence of State practice to support the conclusion that 
the rules of customary international law in internal conflicts are as extensive as 
the Appeals Chamber found. The argument of logic is, however, compelling, 
and it is likely that the Tadic precedent will be followed on this point, 
particularly if the International Criminal Court is established and given 
jurisdiction over war crimes committed in internal conflicts. Nevertheless, 
some differences remain between the law of weaponry in international conflicts 
and that applicable in internal conflicts because some of the specific provisions 
on weaponry have not become customary law and, therefore, depend entirely 
upon treaties as the basis for their applicability. 

Secondly, there have sometimes been differences of opinion over whether 
weapons and methods of warfare are lawful unless prohibited (either expressly 
or by necessary implication) or whether one should proceed on the basis that 
the use of at least certain types of weapon is illegal in the absence of a 
permissive rule to the contrary. An element of uncertainty on this question can 
be seen in the Opinion of the International Court of Justice in the Nuclear 
Weapons case. The Court stated both that international law contained no 
"specific authorization oi the threat or use of nuclear weapons" 47 and that it 
contained no "comprehensive and universal prohibition of the threat or use of 
nuclear weapons as such." 48 Nevertheless, an examination of the whole 
Opinion demonstrates that the Court did not endorse the argument that 
nuclear weapons carried a general stigma of illegality which rendered their use 
unlawful in the absence of a permissive exception to the general rule. Had the 
Court adopted such an attitude, its finding that there was no rule authorizing 
the use oi nuclear weapons would have disposed of the case. By holding that 
international law contained neither a comprehensive prohibition of the use of 
nuclear weapons, nor a specific authorization of their use, all the Court did was 
to hold that the answer to the General Assembly's question had to be sought in 
the application of principles of international law which were not specific to 
nuclear weapons. When the Court came to consider those principles, it looked 
to see whether they prohibited the use of nuclear weapons, not whether they 
authorized such use. In commencing its examination of the law of armed 
conflict, the Court stated that: 

State practice shows that the illegality of the use of certain weapons as such does 
not result from an absence of authorization but, on the contrary, is formulated in 
terms of prohibition. 

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The Law of Weaponry 



The Court must therefore now examine whether there is any prohibition of 
recourse to nuclear weapons as such ,... 49 

This approach, rather than that of seeking a permissive rule, certainly accords 
better with State practice in relation to all types of weaponry over an extended 
period. 

(I) The General Principles of the Law of Weaponry 

(a) The Unnecessary Suffering Principle. The most recent statement of this 
principle can be found in Article 35(2) of Additional Protocol I, which 
provides that: 

It is prohibited to employ weapons, projectiles and material and methods of 
warfare of a nature to cause superfluous injury or unnecessary suffering. 

The principle is a long established part of customary international law which 
can be traced back to the 1868 St. Petersburg Declaration and to the Hague 
Regulations of 1899 and 1907. As was seen in Part III, the rationale for this 
principle is to be found in the broader principle of necessity in armed conflict, 
which prohibits wanton violence that serves no legitimate military purpose. 50 
As well as providing a general yardstick against which all weapons and methods 
of warfare must be judged, the unnecessary suffering principle has provided 
much of the inspiration for agreements on specific weapons, such as those on 
explosive, inflammable and soft-headed or expanding bullets, 51 chemical and 
biological weapons, 52 poison, 53 and weapons which injure with fragments 
which cannot be detected by x-rays. 54 Some of these agreements go beyond the 
general principle in that they prohibit the use of such weapons even in 
circumstances where their use might not have been a violation of the general 
principle. 55 

The unnecessary suffering principle applies to both the methods and means 
of warfare. It prohibits outright any weapon (or means of warfare) which is of a 
nature to cause unnecessary suffering. In addition, where a particular weapon 
has a legitimate use but is also capable of being used in a way which will, in the 
circumstances, cause unnecessary suffering (and all weapons can be so used), 
the principle prohibits the latter use (or method of warfare) even though it does 
not give rise to an outright ban on the weapon itself. 

The fact that a particular weapon or method of warfare causes severe or 
widespread injuries or death, or inflicts great pain, is not, in itself, sufficient to 
render its use incompatible with the unnecessary suffering principle. That 

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Christopher Greenwood 



principle does not possess an absolute character; it does not prohibit the use of 
any weapon or method of warfare which causes extreme suffering or extensive 
injuries, but only those which cause injuries or suffering that are unnecessary. 
The application of the unnecessary suffering principle thus requires a balancing 
of the military advantage which may result from the use of a weapon with the 
degree of injury and suffering which it is likely to cause. As the Japanese court 
in the case of Shimoda v. The State put it, "the use of a certain weapon, great as 
its inhuman result may be, need not be prohibited by international law if it has a 
great military effect." 56 

This balancing act is, however, easier to state in the abstract than it is to 
apply, since one is not comparing like with like and there is considerable 
uncertainty regarding the factors to be placed on each side of the scales. A 1975 
Conference of Experts held at Lucerne which considered this question agreed 
that the principle "involved some sort of equation between, on the one hand, 
the degree of injury or suffering inflicted (the humanitarian aspect) and, on the 
other, the degree of necessity underlying the choice of a particular weapon (the 
military aspect)," 57 but had more difficulty in agreeing on how this should best 
be applied. It is important, therefore, to examine the factors which should be 
taken into account on each side of the equation. 

The Military Aspect. In determining what factors may be taken into account on 
the military side of the equation, the Preamble to the St. Petersburg Declaration 
provides a useful starting point. 58 The Declaration is based upon the premise 
that, since the legitimate objective of disabling an enemy combatant could be 
achieved with ordinary rifle ammunition, the "rifle shell" or exploding bullet 
merely exacerbated injury or rendered death inevitable and should therefore be 
prohibited. On the other hand, the high explosive shell, which was far more 
destructive and just as deadly, was excluded from this prohibition because it 
offered a distinct military advantage in that it could disable several combatants 
with one shot or destroy large quantities of property, and thus achieve military 
goals which ordinary rifle ammunition could not. In taking the decision which 
they did, the States represented at the 1868 Conference rejected two factors 
which might have been taken into account on the military side of the equation. 
First, they expressly rejected the argument that since a disabled enemy might 
recover and be able to fight again, the fact that a weapon made death inevitable 
was a legitimate military reason for employing that weapon in preference to 
others. The same reasoning is reflected more than a century later in the ban on 
weapons which injure with fragments that cannot be detected with x-rays. 
Secondly, there was an implicit rejection of the argument that the very savagery 



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The Law of Weaponry 



of a weapon might be a legitimate military advantage because of the effect 
which it produced upon the morale of enemy combatants. 59 

As the first modern attempt to apply the unnecessary suffering principle in a 
specific case, the Declaration remains important. Nevertheless, in at least one 
respect it presents an over-simplified picture. The suggestion that the legitimate 
objectives of a belligerent can be achieved by disabling the greatest number o( 
men overlooks the fact that there are other equally legitimate objectives, such as: 

[T]he destruction or neutralisation of enemy materiel, restriction of movement, 
interdiction of lines of communication, weakening of resources and, last but not 
least, enhancement of the security of friendly forces. 60 

It is generally accepted that the weapons needed to achieve such aims differ, 
both in character and effect, from those commonly used against personnel and 
may cause more serious injuries or make death more likely than would typical 
anti-personnel weapons. Nevertheless, their use does not violate the 
unnecessary suffering principle, because the advantages which they offer, in 
terms, for example, of their capacity to destroy materiel, means that this 
additional suffering cannot be characterized as unnecessary. 61 

The Humanitarian Aspect. Disagreement also exists about what factors 
should be taken into account on the "suffering" side of the equation. The 
Lucerne Conference considered that 

[T]his comprised such factors as mortality rates, the painfullness or severeness of 
wounds, or the incidence of permanent damage or disfigurement. Some experts 
considered that not only bodily harm but also psychological damage should be 
taken into account. Another expert could not accept such a wide interpretation 
of the concept at issue, as all wartime wounds, no matter how slight, could entail 
severe psychological harm. 62 

The present writer considers that the concept of "injury" or "suffering" includes 
the totality of a victim's injury, and that a distinction between physical and 
psychological injuries would be artificial, as well as having no basis in past 
practice concerning weaponry. A more difficult question is whether the effects 
of the victim's injuries upon the society from which he or she comes should be 
taken into account on this side of the equation — for example, the effect upon a 
society of having to cope with large numbers of limbless or blinded former 
combatants would invariably be serious and might well be disastrous. Such 
effects are, however, difficult to quantify and depend more upon the numbers 
injured than the nature of the injuries in any particular case. 

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A report published in 1997 by the International Committee of the Red Cross 
attempts to specify more precise criteria for determining whether a particular 
weapon causes unnecessary suffering. 63 The approach taken in this Report is to 
study the medical effects of existing weapons, i.e., the degree to which they 
cause death or particular types of injury, and suggest four sets of criteria to be 
used in determining whether a new weapon is one which violates the 
unnecessary suffering principle. 

• Does the weapon foreseeably cause specific disease, specific abnormal 
physiological state, specific abnormal psychological state, specific and 
permanent disability, or specific disfigurement? 

• Does the weapon foreseeably cause a field mortality of more than 25% or 
a hospital mortality of more than 5% (figures substantially in excess of those 
caused by weapons in use at present)? 

• Are the weapons designed to cause particularly large wounds? 

• Does the weapon foreseeably exert effects for which there is no well 
recognized and proven treatment? 

The identification o{ these criteria and the medical study on which they are 
based is of considerable value in helping to show how the balancing act 
required by the unnecessary suffering principle can be made more precise and 
less anecdotal than at present. It is, however, important to realize that the fact 
that a particular weapon meets one of these criteria is not, in itself, sufficient to 
brand it as unlawful without consideration of the military advantages which 
that weapon may offer. For example, the fact that soldiers cannot take cover 
from a particular type of weapon will, as the report points out, heighten the 
reaction of abhorrence produced by such a weapon. 64 But it is also the very 
inability of soldiers to take cover that means that the weapon will, in the 
language of the 1868 Declaration, disable the greatest possible number of 
enemy combatants, and which thus gives it its military effectiveness when 
compared with other weapons. 

Comparison Between Weapons. The essence of the unnecessary suffering 
principle is that it involves a comparison between different weapons in 
determining whether the injuries and suffering caused by a particular weapon 
are necessary. As Dr. Hans Blix has noted, "it is unlawful to use a weapon 
which causes more suffering or injury than another which offers the same or 
similar military advantages." 65 The 1868 Declaration was based, as has been 
seen, on precisely such a comparison. In many cases, however, making that 
comparison will be more difficult than might appear from a glance at the 
approach taken in 1868. 

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The Law of Weaponry 



It is not enough simply to consider the immediate effects of the two weapons 
(or methods of warfare) which are being compared. It may well be the case that 
the one weapon offers the same or similar destructive capability and accuracy 
as another while causing less horrific injuries or a lower level of fatalities. Before 
it is concluded, however, that the use of the latter weapon would therefore 
cause unnecessary suffering, it is necessary to consider a number o{ other 
factors, in particular the availability (including the expense) of both types of 
weapon and the logistics of supplying the weapon and its ammunition at the 
place where it is to be used. A particularly important consideration will be the 
extent to which each type of weapon protects the security of the troops which 
employ it, for if the use of the first, more "humane," weapon will lead to 
significantly higher casualties amongst the force using it, then there is a valid 
military reason for using the second. A belligerent is not obliged to sacrifice 
members of its own armed forces in order to spare the enemy's combatants (as 
opposed to the enemy's civilian population) the effects of the fighting. 66 These 
considerations are as much part of the military advantages which the weapon 
offers as the effects which its use produces on the enemy. 

Moreover, it has to be remembered that the degree o{ choice of weapons 
decreases as one goes down the chain of command. While those who plan or 
decide upon operations at the highest levels of command are likely to have a 
large range of weapons at their disposal and the battle group or task force 
commander retains a significant element of choice, the individual soldier does 
not, as Professor Kalshoven puts it, carry the military equivalent of a bag of golf 
clubs from which he can select the weapon appropriate to each task; usually 
that soldier has no element of choice of weapon at all. 67 This consideration is 
likely to be of considerable importance if, which has not hitherto been the case, 
individual servicemen face trial on charges of using illegal weapons. 

The Effect of the Unnecessary Suffering Principle. Although it is the oldest 
principle of the law of weaponry and its continued significance has recently 
been reaffirmed by the International Court of Justice, in practice the 
unnecessary suffering principle has only very limited effects. In particular, it is 
difficult to find a single example of a weapon which has entered into service 
during the twentieth century and which is generally agreed to fall foul of this 
principle. There are several reasons why that is the case. First, if the question is 
whether the weapon itself, as opposed to its use in specific circumstances, 
contravenes the principle, there is disagreement about the test to be applied. 
At the Lucerne Conference, a paper submitted by a British military lawyer 
suggested that the principle would ban a weapon outright only when that 
weapon was "in practice found inevitably to cause injury or suffering 

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disproportionate to its military effectiveness." 68 Other experts contested the 
use of the word "inevitably" and argued that it was sufficient if the weapon 
caused such effects in its "normal" use. Article 35(2) of Additional Protocol I 
speaks of weapons "of a nature" to cause unnecessary suffering. It is doubtful 
whether the use of this formula offers any greater degree of clarity. In practice, 
if it can plausibly be argued that there is a significant range of cases in which a 
weapon can be used without causing unnecessary suffering, the weapon itself is 
unlikely to be regarded as unlawful under this principle. That conclusion is 
confirmed by the paucity of examples of contemporary weapons described in 
the literature as contravening the unnecessary suffering principle. 69 The result 
is that the unnecessary suffering principle has generally been more important in 
prohibiting particular uses of weapons (i.e., methods of warfare) than the 
weapons themselves. 

Secondly, as has been seen, the criteria to be employed on both sides of the 
equation in the unnecessary suffering principle are far from clear. Moreover, 
even if the criteria themselves were clearer, it is frequently very difficult when a 
new weapon is developed for anyone outside the circle of those who have been 
responsible for its development to make an informed assessment of the military 
advantages which it offers or the medical effects which its use is likely to 
produce. 

Finally, even when sufficient information about the weapon is available, a 
determination of whether or not its use would violate the unnecessary suffering 
principle requires a balancing of the likely military advantages and the likely 
human suffering which its use in the future will entail, and then a comparison 
between that balance and what would result from the use of alternative 
weapons. It is scarcely surprising that agreement on the outcome of applying 
such a test is seldom achieved. 

(b) The Principle of Discrimination. The second general principle prohibits 
the use of indiscriminate weapons or — which is more important in 
practice — the indiscriminate use of any weapon, irrespective of whether that 
weapon is inherently indiscriminate. This principle is, in fact, a compound o{ 
three separate principles. First, it is well established in customary international 
law that it is unlawful to direct attacks against the civilian population, 
individual civilians or civilian property. Under the principle of distinction, a 
belligerent is required to distinguish between the enemy's combatants and 
military objectives on the one hand and the civilian population and civilian 
property on the other, and direct his attacks only against the former. 70 
Secondly, even if the target of an attack is a legitimate military objective, the 

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principle of proportionality provides that it is prohibited to proceed with the 
attack if it: 

[M]ay be expected to cause incidental loss of civilian life, injury to civilians, 
damage to civilian objects or a combination thereof, which would be excessive in 
relation to the concrete and direct military advantage anticipated. 71 

Finally, if there is a choice o( the methods or means o{ attack, there is a 
requirement to take all feasible precautions with a view to avoiding or 
minimizing incidental civilian casualties and damage. 72 

These principles go primarily to the question of targeting, a matter which 
falls outside the scope of this paper. 73 Nevertheless, they also have an effect 
upon the law of weaponry. If a weapon is incapable of being used in a way which 
permits discrimination between military targets and civilians or civilian 
objects, then it is inherently indiscriminate and these principles render it 
unlawful. In practice, very few weapons are so inaccurate that they cannot be 
used in a way which complies with the principles set out in the preceding 
paragraph, although the VI and V2 missiles used by Germany in the Second 
World War probably fell into that category. 74 A far more common case of 
conduct prohibited by these principles is the indiscriminate use of a weapon 
which is capable of being used in a discriminating way. Iraq's use of Scud 
missiles during the Gulf hostilities in 1991 is an example. 75 

These principles are some of the most important cornerstones of the law of 
armed conflict. They were so widely disregarded during the Second World War 
that it was open to question whether they could still be regarded as part of the 
customary law. Since 1945, however, they have been reaffirmed on a number of 
occasions, most recently in Additional Protocol I, and were applied by, for 
example, the Coalition States in the operations against Iraq in 1991. 76 Their 
status as part of the contemporary customary law cannot now be doubted. 
While difficulties in their application remain, Protocol I has resolved a great 
many problems. In particular, it has clarified the principle that attacks must be 
directed only against military objectives by offering a workable definition of a 
military objective and has made clear that in applying the test oi 
proportionality, only a "concrete and direct military advantage," rather than a 
nebulous concept such as the effect on enemy morale, is to be weighed against 
the effect of an attack upon the civilian population. 

The principles contain both absolute and relative elements. The principle of 
distinction possesses an absolute character — civilians and civilian objects must 
never knowingly be made the object of attack and care must be taken to ensure 
that any target is, in fact, a legitimate military objective. 77 The principle oi 

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proportionality, on the other hand, involves a balancing of the military 
advantages to be gained from an attack upon a military target against expected 
civilian losses and damage. As with the principle of unnecessary suffering, if 
those same military advantages can be achieved in different ways, one of which 
involves likely civilian casualties whereas the other does not, then the choice o( 
the first route will entail a violation of the principle. However, the same 
qualifications apply here. In determining whether a commander who possesses 
a choice of weapons or methods of warfare should select one rather than the 
other, the extent to which both are truly available to him (in the light of such 
considerations as the likely future calls on precision munitions, the protection 
of his own forces and the logistic questions considered in the previous section) 
must be examined. The difference is that, although the security o{ his own 
forces remains an important part of this calculation, the need to reduce the risk 
to the civilian population means that a commander may be required to accept a 
higher degree of risk to his own forces. 

Where the proportionality principle differs from the unnecessary suffering 
principle is that it is clearly established that it does not stop at the prohibition of 
unnecessary collateral injury and damage, but also requires a belligerent to 
abstain from an attack altogether, even if that means losing a military 
advantage which cannot be obtained by other means, if the military advantage 
would not be worth the expected civilian casualties and damage. The principle 
of proportionality is thus a more substantial constraint than the unnecessary 
suffering principle. Nevertheless, it remains a requirement to balance military 
gains against civilian losses; it does not possess an absolute character. In this 
respect, the Commentary on Additional Protocol I published by the 
International Committee of the Red Cross is misleading when it says that: 

The idea has been put forward that even if they are very high, civilian losses and 
damage may be justified if the military advantage at stake is of great importance. 
This idea is contrary to the fundamental rules of the Protocol. . . . The Protocol 
does not provide any justification for attacks which cause extensive civilian 
losses and damage. Incidental losses and damage should never be extensive. 78 

What the principle of proportionality (as stated in both customary law and 
the Protocol) prohibits is the causing of excessive civilian losses and damage. By 
substituting the word extensive, the Commentary replaces a term which 
necessarily implies a balance between two competing considerations with a 
term which suggests an absolute ceiling on civilian losses. There is no basis in 
the law for such an approach. 

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The Gulf conflict of 1990-91 demonstrated that the principles which are 
designed to protect the civilian population are workable. That conflict, 
however, also highlighted the fact that the proportionality test today requires 
consideration of a wider range of issues than in the past. In the Gulf conflict, 
Coalition air raids and naval bombardment of military targets appear to have 
caused relatively few direct civilian losses, but the damage done to the Iraqi 
power generating system and other parts of Iraq's infrastructure did far more 
harm to the civilian population. Application o( the proportionality test today, 
at least at the strategic level, requires that less immediate damage of this kind 
must also be taken into account, although the difficulty of doing so is apparent. 

The treaty statements o{ the discrimination principles do not apply to naval 
warfare except in so far as it involves the civilian population on land. 
Nevertheless, it is clear that there are restrictions on targeting in naval warfare. 79 
In particular, merchant ships are not automatically to be treated as legitimate 
targets unless they engage in certain kinds of behaviour. It has therefore been 
suggested in a recent study that the principles of distinction and proportionality 
are applicable, mutatis mutandis, as part of the customary law of naval warfare, 
with consequent implications for the law of weaponry in a naval context. ° 

(c) The Prohibition of Perfidy. The principle which prohibits the use of 
perfidy is well established in both customary international law and Additional 
Protocol I. The somewhat mixed objectives which this principle seeks to 
achieve have already been discussed in Part III and little more need be said 
here. There is probably no weapon which is inherently perfidious, 81 and the 
principle therefore operates entirely upon the methods of warfare. 

The humanitarian rationale o{ this principle is concisely set out in Article 
37(1) of Additional Protocol I as "inviting the confidence of an adversary to 
lead him to believe that he is entitled to, or is obliged to accord, protection 
under the rules of international law applicable in armed conflict, with intent to 
betray that confidence." The provision then goes on to give the following 
examples of perfidy: 

(a) the feigning of an intent to negotiate under a flag of truce or of a 
surrender; 

(b) the feigning of an incapacitation by wounds or sickness; 

(c) the feigning of civilian, non-combatant status; and 

(d) the feigning of protected status by the use of signs, emblems or 
uniforms of the United Nations or of neutral or other States not Parties to 
the conflict. 

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Article 38 adds a specific prohibition on the improper use of the emblems 
(principally the Red Cross and Red Crescent) of the Geneva Conventions and 
internationally recognized protective emblems, such as the flag of truce, as well 
as any unauthorized use of the United Nations emblem. 82 By contrast, Article 
37(2) provides that: 

Ruses of war are not prohibited. Such ruses are acts which are intended to 
mislead an adversary or to induce him to act recklessly but which infringe no rule 
of international law applicable in armed conflict and which are not perfidious 
because they do not invite the confidence of an adversary with respect to 
protection under that law. The following are examples of such ruses: the use of 
camouflage, decoys, mock operations and misinformation. 

As has already been seen, these provisions, which reflect customary 
international law, serve a clear humanitarian objective. The prohibition in 
Article 39(1) of the use by belligerents of the flags, emblems, and uniforms oi 
neutral States or other States not party to the conflict also serves that 
objective, since it also seeks to protect persons and objects which would not be 
legitimate targets of attack. That is not true, however, of the rule in Article 
39(2) which forbids the use of enemy flags and uniforms by a belligerent while 
engaging in an attack or in order to shield, favor, protect, or impede military 
operations. The objective behind the latter rule is quite different and serves no 
obvious humanitarian purpose. 83 

Traditionally, the law on ruses in naval warfare has been different. In naval 
warfare, the use of enemy flags and signals is entirely legitimate up to the point 
at which an attack is commenced. 84 There is, therefore, no equivalent of the 
rule in Article 39(2) of Additional Protocol I (which is expressly stated not to 
apply to naval warfare). 85 The principles in Articles 37 and 38 of the Protocol 
are intended to apply to all forms of warfare, but their application to naval 
hostilities necessitates some modification to take account of the different 
conditions of naval warfare. The San Remo Manual on International Law 
Applicable to Armed Conflicts at Sea states the basic principle of perfidy in the 
same terms used in Additional Protocol I, Article 37(1), and adds, as specific 
examples of perfidious behavior: 

. . . the launching of an attack v/hile feigning: 

(a) exempt, civilian, neutral or protected United Nations status; 

(b) surrender or distress by, e.g., sending a distress signal or by the crew 
taking to life rafts. 86 

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The Law of Weaponry 



This provision was supported by a large group of experts and is in accordance 
with the approach taken in the United States Naval Commander's Handbook* 1 
It is open to question, however, whether sub-paragraph (a) reflects customary 
law, since the practice of disguising warships as merchant vessels and the use of 
Q-ships was extensively practised during the Second World War and there is 
no clear practice to the contrary since that date. 88 
The San Remo Manual also states that: 

Ruses of war are permitted. Warships and auxiliary vessels, however, are 
prohibited from launching an attack whilst flying a false flag, and at all times from 
actively simulating the status of: 

(a) hospital ships, small coastal rescue craft or medical transports; 

(b) vessels on humanitarian missions; 

(c) passenger vessels carrying civilian passengers; 

(d) vessels protected by the United Nations flag; 

(e) vessels guaranteed safe conduct by prior agreement between the 
parties, including cartel vessels; 

(f) vessels entitled to be identified by the emblem of the red cross or red 
crescent; or 

(g) vessels engaged in transporting cultural property under special 
protection. 89 

(d) The Principle of Environmental Protection. A number of specific rules of 
the law of armed conflict operate, expressly or impliedly, to protect the 
natural environment. Thus, the 1977 Environmental Modification Treaty 
addresses the potential problem of a belligerent seeking to use the 
environment as a means of warfare in itself by prohibiting the use of 
environmental modification techniques which have widespread, 
long-lasting, or severe effects upon the environment. 90 This treaty, however, 
deals with the exceptional case oi the deliberate manipulation o{ the 
environment for military purposes, rather than the far more common case of 
environmental damage inflicted in the course of ordinary military operations. 
To some extent, the prohibition of the wanton destruction of property and 
the use of chemical and biological weapons, as well as the restrictions on the 
use of land mines and incendiary weapons indirectly protect the 
environment. Today, however, it is argued that there is a broader, general 
principle of respect for the environment in time of armed conflict. 91 

For States party to Additional Protocol I, such a principle is to be found in 
Article 35(3), which states that: 

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Christopher Greenwood 



It is prohibited to employ methods or means of warfare which are intended, or 
may be expected, to cause widespread, long-term and severe damage to the 
natural environment. 92 

This provision was, however, an innovation in 1977 and cannot be regarded as 
forming part of customary international law. 93 

Nevertheless, there are clear indications that a general principle of 
environmental respect is emerging and may well already form part of customary 
law. Thus, the 1995 edition of the U.S. Commander's Handbook on the Law of 
Naval Operations stipulates that: 

It is not unlawful to cause collateral damage to the natural environment during 
an attack upon a legitimate military objective. However, the commander has an 
affirmative obligation to avoid unnecessary damage to the environment to the 
extent that it is practicable to do so consistent with mission accomplishment. To 
that end, and as far as military requirements permit, methods or means of warfare 
should be employed with due regard to the protection and preservation of the 
natural environment. Destruction of the natural environment not necessitated 
by mission accomplishment and carried out wantonly is prohibited. Therefore, a 
commander should consider the environmental damage which will result from 
an attack on a legitimate military objective as one of the factors during target 
analysis. 94 

In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons , 
the International Court of Justice stated that: 

States must take environmental considerations into account when assessing 
what is necessary and proportionate in the pursuit of legitimate military 
objectives. Respect for the environment is one of the elements that go to 
assessing whether an action is in conformity with the principles of necessity and 
proportionality. 95 

The United Nations General Assembly has expressed similar views. 96 While 
the language may be different in each case, the general sense is substantially the 

97 

same. 

(e) Other General Principles. Before leaving the subject of the general 
principles, it is necessary to consider whether any other general principle may 
have become part of the law of weaponry. There is, of course, the principle that 
the right of the parties to an armed conflict to choose the methods and means 
of warfare is not unlimited. 98 This principle is not, however, a free-standing 
norm, since it gives no indication what the limitations upon the right to choose 

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The Law of Weaponry 



might be. It serves only to introduce the limitations, both general and specific, 
laid down elsewhere in the law. 

A more substantial contender is the Martens Clause, which first appeared in 
the Preamble to Hague Convention No. II of 1899. The most recent version of 
this clause appears as Article 1(2) of Additional Protocol I: 

In cases not covered by this Protocol or by other international agreements, 
civilians and combatants remain under the protection and authority of the 
principles of international law derived from established custom, from the 
principles of humanity and from the dictates of the public conscience. 

It has sometimes been argued that the use of a particular weapon or method 
of warfare might be unlawful, as a result of the Martens Clause, even though it 
was not outlawed by any of the general principles or specific provisions of the 
law of weaponry." According to this approach, a weapon will be unlawful if its 
effects are so contrary to considerations of humanity and the public conscience 
that it arouses widespread revulsion. This view is based upon a 
misunderstanding of the Martens Clause. There is no doubt that one effect of 
the Clause is that the absence of a specific treaty provision does not mean that 
a weapon must be lawful; the Clause makes clear that the general principles 
embodied in customary law still apply and that the use of a weapon contrary to 
those principles will be unlawful. Furthermore, the Martens Clause 
undoubtedly states what has frequently been the motivating force behind the 
adoption of a specific ban (e.g., those on land mines and laser weapons). There 
is no evidence, however, that the use of any weapon has ever been treated by 
the international community as unlawful solely on account o{ the Martens 
Clause and the Clause should not be regarded as laying down a separate general 
principle for judging the legality of weapons under existing law. 100 

Finally, it can reasonably be said that the undoubted duty to respect the 
territorial integrity of neutral States implies the existence of a general principle 
that the belligerents must abstain from the use oi methods and means of 
warfare which cause disproportionate damage to the territory of neutral States. 
This principle has only very limited significance for the use of weapons other 
than nuclear weapons and it is in that context that it will be considered below. 

(2) Rules on Specific Weapons. The evolution of the treaty provisions 
regulating the use of specific weapons has already been outlined in Part II. 
Unlike the general principles o( the law of weaponry, these specific provisions 
tend to concentrate upon the means used (e.g., exploding bullets of less than 
400 grammes weight, laser weapons, chemical weapons), rather than the 

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Christopher Greenwood 



effects produced (e.g., unnecessary suffering, disproportionate civilian 
casualties). They fall into three broad groups: 

• Limitations on the use of a particular weapon which fall short of an 
outright ban; 

• Bans on the use, but not the possession and, perhaps, not the retaliatory 
use, of a particular weapon; and 

• Bans on both use and possession. 

It is not intended in this paper to try to analyze all of the specific weapons 
provisions. Instead, three categories of weapons — laser weapons, land mines, 
and chemical weapons — which have been the subject of important legal 
changes in the 1990s, and which illustrate the three categories set out above, 
will be examined. 

(a) The Lasers Protocol In October 1995, a Conference was convened 
under the provisions of Article 8(3) of the 1981 Weapons Convention to 
review the scope and operation of the Convention and its three Protocols. One 
of the items on the agenda of the Review Conference was a proposal for the 
adoption o{ a new protocol to the Weapons Convention to ban the use of 
anti-personnel laser weapons (a type of weapon not then in common use but 
which it was believed would be widely available before long) on the ground that 
such weapons would cause permanent blindness. This issue had been under 
consideration by the International Committee of the Red Cross for several 
years. 101 It had been argued by some commentators that the use of laser 
weapons to blind enemy combatants was already prohibited by the unnecessary 
suffering principle. 102 That conclusion was challenged, however, by others who 
argued that a blinding weapon could not be regarded as causing unnecessary 
suffering when the alternative weapons could cause death. 103 In fact, the 
arguments are finely balanced and the unnecessary suffering principle probably 
does not outlaw the use of anti-personnel lasers as such, although it might 
prohibit their use in certain circumstances. 104 In view oi this difference of 
opinion and the uncertainty inherent in the application of the unnecessary 
suffering principle, the opponents of anti-personnel lasers not surprisingly 
decided that it was necessary to seek a specific ban. 

In this case, the approach of seeking to eliminate an entire category of 
weapons was never an option. Lasers are used on the battlefield for a wide range 
of undoubtedly legitimate purposes, including target identification and range 
finding, which would not normally involve injury to eyesight and which States 
were not willing to abandon. In addition, several States distinguished between 
the use of lasers against the human eye and their use against equipment optical 
systems, where there was a risk of incidental injury to the human eye. 

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The Law of Weaponry 



The new agreement, 105 adopted by the Review Conference as Protocol IV to 
the Weapons Convention, reflects these views. Article 1 prohibits the 
employment of "laser weapons specifically designed, as their sole combat 
function or as one of their combat functions, to cause permanent blindness to 
unenhanced vision, that is to the naked eye or to the eye with corrective 
eyesight devices." The use of laser weapons which do not have as one of their 
combat functions the causing of permanent blindness to the naked eye is not, 
therefore, prohibited and, if blindness is caused as a collateral consequence of 
the use of such a weapon, or the use of other laser systems such as range finders, 
there will be no violation of the Protocol. 106 Article 2 of the Protocol, however, 
requires the parties to take all feasible precautions, when using laser systems 
not prohibited by the Protocol, to avoid causing blindness to the unenhanced 
vision of enemy combatants. 

The result is a treaty that bans the use of a fairly narrow category of 
weapons — laser weapons specifically designed to cause blindness. The use of 
other types o( laser weapon, even if it results in blindness, remains lawful. At 
the time of writing, the Protocol had not yet entered into force. When it does, it 
will be binding only upon those States parties to the Weapons Convention 
which opt to become bound by Protocol IV. 

(b) Land Mines. Unlike laser weapons, land mines have been the subject of a 
sustained campaign during the 1990s to achieve a total ban. Whereas the 
concern about blinding laser weapons centered on the unnecessary suffering 
principle, the move to ban land mines was motivated more by the effects which 
their use had been shown to have upon the civilian population, often long after 
the conflict. Nevertheless, while the indiscriminate use of land mines was a 
violation of the general principle of distinction, they were also capable of lawful 
use, against military targets or as a means of denying an adversary access to an 
area of land. 

Protocol II to the Weapons Convention already contained limitations on 
the use of land mines and booby-traps. 107 So far as mines 108 were concerned, the 
original Protocol II limited their use in the following ways: 

• By prohibiting their use against civilians and their indiscriminate use 
(Article 3), although this added nothing to the general principles on targeting; 

• By imposing a more specific restriction on the use of mines in centers of 
civilian population where combat was not actually taking place (Article 4); 

• By prohibiting the use of remotely delivered mines unless they are used 
within an area which is itself a military objective and either their location is 
accurately recorded or they are fitted with a self-neutralizing mechanism which 

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Christopher Greenwood 



will render the mine harmless or destroy it when it no longer serves the military 
purpose for which it was laid (Article 5); and 

• By requiring the recording and publication of the location of minefields 
and co-operation in their removal after a conflict (Articles 7 and 9). 

The provisions o( the Protocol are very limited. Only Article 5 imposed a 
substantial limitation and this is "clumsily worded." 109 Not surprisingly, these 
provisions were widely regarded as insufficient in view of the devastating effects 
of land mines — often continuing for many years after the end o{ active 
hostilities. 110 A number of States therefore pressed for a complete ban on land 
mines, while others urged the Review Conference to tighten the restrictions in 
Protocol II. 

The first result was the adoption in 1996 of an amended Protocol II 111 which 
goes some way towards tightening the restrictions on the use of land mines and 
increasing the protection of the civilian population. The most important 
changes introduced by the amendments are as follows: 

• A ban on the use of various devices which make mine clearance more 
dangerous (Article 3(5) and (6)); 

• A ban on the use of anti-personnel mines which are not detectable, as 
specified in the technical annex to the Protocol (Article 4); 

• Restrictions on the use of mines which do not meet the requirements in 
the technical annex (Article 5). The technical annex requires that mines 
produced after 1 January 1997 must meet certain requirements regarding 
detection and self-neutralization and their location must be carefully recorded; 

• Stricter constraints on the use of remotely delivered mines (Article 6); 

• Stricter rules for the protection of peacekeepers and others not directly 
involved in the conflict (Article 12) and for the protection of civilians (Article 
3(8) to (11)); 

• A more extensive obligation regarding mine clearance after the conflict 
(Articles 10 and 11); and 

• A prohibition on the transfer of mines which do not meet the 
requirements of the Protocol and limitations on the transfer of mines which do 
meet those requirements (Article 8). 

The amended Protocol II is thus considerably more stringent than the original 
Protocol. Whether it will succeed in significantly reducing the threat posed to 
civilians by mines is another matter. One of the biggest threats to civilians is the 
large numbers of old mines, readily available and cheap, which do not meet the 
requirements of the amended Protocol and which are likely to be used by 
untrained personnel. This risk is particularly acute in civil wars; indeed, it is in 
the civil wars in Angola and Cambodia that some of the worst casualties from 

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The Law of Weaponry 



land mines have been sustained. It is therefore an important development that 
the amended Protocol is expressly applied to internal armed conflicts within 
the meaning of common Article 3 of the Geneva Conventions, where it applies 
both to the government and rebel parties. 112 Since the other Protocols to the 
Weapons Convention contain no provision on the scope of their application, 
they apply only in the circumstances specified in Article 1 of the Weapons 
Convention itself, namely international armed conflicts, including wars of 
"national liberation" as defined in Article 1 (4) of Additional Protocol I to the 
Geneva Conventions. It has, however, been suggested, notwithstanding the 
absence of any express provision regarding internal conflicts in the new Protocol 
IV, that Protocol was also intended to apply to internal armed conflicts, 113 
although no trace of such an understanding is to be found in its text. 

The amended Protocol II did not go far enough for a large |pody of States. 
They aimed instead at a complete ban on the use and transfer of land mines 
and, to that end, adopted a separate treaty in 1997. The United Nations 
Convention on the Prohibition of the Use, Stockpiling, Production and 
Transfer of Anti-Personnel Mines and on their Destruction, as its name 
suggests, is a complete ban on the use of anti-personnel land mines. 114 The 
Convention, the Preamble of which echoes the language of the Martens Clause 
and refers specifically to both the unnecessary suffering principle and the 
principle of distinction, goes beyond a ban on the use of anti-personnel mines 
"in all circumstances" and bans their production, stockpiling, and possession, 
as well as the transfer of such mines to others. The definition of an 
anti-personnel mine, however, excludes mines "designed to be detonated by 
the presence, proximity or contact of a vehicle as opposed to a person," even if 
equipped with anti-handling devices. 115 The Convention requires that all 
parties take steps, including the imposition of penal sanctions, to ensure 
implementation of its provisions. 116 While the conclusion of this Convention 
was a triumph for the opponents of land mines, its effectiveness is likely to be 
limited as a number of major military powers have declined to participate. 

Once the 1997 Convention and the amended Protocol II enter into force, 
there will be a complex network of obligations regarding land mines: 

• States party to the 1997 Convention will be obliged not to employ 
anti-personnel land mines in any circumstances, even in hostilities with States 
not party to the Convention; 

• States party to the 1 980 Conventional Weapons Convention which elect 
to become party to the amended Protocol II will be bound by that Protocol in 
their relations with other States party to the 1980 Convention which have 
accepted that Protocol; 

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• States party to the 1 980 Conventional Weapons Convention which elect 
not to become party to the amended Protocol II will remain bound by the 
original Protocol II in their relations with other parties which have made the 
same choice; and 

• States not party to the 1980 Convention or which have not accepted 
either version of Protocol II will remain subject in their use of land mines only 
to the customary law general principles on unnecessary suffering and 
distinction and other States will be subject to the same regime in their relations 
with such States (unless, of course, they are parties to the 1997 Convention). 

As students o{ the law will doubtless testify, multiplicity of law making bodies 
has its price. 

(c) Chemical Weapons. By far the most important development in the law of 
weaponry during the last decade of the twentieth century has been the adoption 
in 1993 of a new Chemical Weapons Convention. 7 The use of chemical 
weapons in warfare had already been prohibited by the 1925 Geneva Protocol. 118 
That prohibition, however, was incomplete in a number of respects. In 
particular, so many States had entered reservations to the 1925 Protocol, to the 
effect that they retained the right to use chemical weapons if those weapons were 
first used against themselves or their allies, that the Protocol was, in reality, only 
a ban on the first use o( such weapons. 119 The use of chemical weapons by Iraq, 
first against Iranian armed forces and later against parts o( Iraq's own civilian 
population, during the Iran-Iraq war, 120 and the threats by Iraq to use chemical 
weapons during the Kuwait conflict, 121 highlighted the weakness of the existing 
legal regime. The prohibition on the use of chemical weapons was reaffirmed by a 
declaration adopted by 149 States at the Paris Conference in January 1989. 
Subsequent negotiations led to the adoption of the new convention in 1993. The 
Convention entered into force in April 1997. 

The 1993 Convention establishes a legal regime far more extensive than 
that contained in the 1925 Protocol and customary international law. While 
space does not permit a detailed analysis of the provisions of the 1993 
Convention here, 122 three points call for comment. First, the scope of the 1993 
Convention is broader than that of the 1925 Protocol. The range of weapons 
covered by the 1925 Protocol had long been the subject of debate, with the 
United States, and latterly the United Kingdom, arguing that non4ethal riot 
control agents lay outside the scope of the Protocol, 123 an interpretation 
contested by many other States. The new Convention expressly prohibits the 
use of riot control agents "as a method of warfare." 124 While this prohibition 
still leaves some room for debate about whether a particular use of riot control 
agents (for example, to suppress a riot at a prisoner of war camp or to deal with 

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The Law of Weaponry 



demonstrators in occupied territory) constitutes their use "as a method of 
warfare," it clearly outlaws the use of riot control agents against enemy forces in 
combat or in bombardment of enemy targets. In addition, the obligation placed 
upon States parties by Article I, paragraph 1, never to use chemical weapons 
"under any circumstances" applies to non-international armed conflicts, as 
well as to conflicts between States. 125 While it had been argued by some States 
and commentators that the prohibition in the 1925 Protocol was also 
applicable to non-international conflicts, 126 the matter was not free from doubt 
and the greater clarity of the new Convention is thus most welcome. 

Secondly, the 1993 Convention prohibits all use of chemical weapons in 
warfare, not just their first use. The obligation never to use chemical weapons 
in any circumstances, contained in Article I, was intended to exclude the 
operation of the doctrine of belligerent reprisals as a justification for employing 
chemical weapons. In addition, Article XXII provides that the Convention is 
not subject to reservations, so that there is no scope for States to become 
parties subject to the kind of reservations which many entered on becoming 
parties to the 1925 Protocol. That does not mean that a State which was the 
victim of a chemical attack in violation of the Convention may not retaliate. 
The Convention prohibits retaliation in kind, in the form of a chemical 
counter-attack, but it does not affect the right of States to retaliate by other 
means. In this context, a particularly important question is whether a State 
could lawfully resort to the use of a nuclear weapon in response to a chemical 
attack. This possibility was considered at some length by Judge Schwebel in his 
dissenting opinion in the Nuclear Weapons case, where he discussed the threat 
of nuclear retaliation allegedly made by the United States to dissuade Iraq from 
resorting to chemical weapons during the Kuwait conflict. 127 In the writer's 
view, the Court's advisory opinion in the Nuclear Weapons case leaves open the 
question whether such a reprisal would be lawful. 

Finally, the 1993 Convention goes far beyond a prohibition on the use of 
chemical weapons and outlaws their manufacture, acquisition, stockpiling, and 
transfer. 128 It also requires States to destroy their existing stocks. 129 The 
Convention creates a complex regime of inspection and verification, which 
goes beyond that envisaged by the Land Mines Convention, the object of 
which is to guarantee that chemical weapons are completely eliminated. This 
ambitious project takes the Convention out o( the scope o( the law of armed 
conflict and into the realm of arms control. It remains to be seen whether some 
of the doubts expressed about the effectiveness of this regime can be overcome 
and the goal o( the Convention attained. 

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(3) Nuclear Weapons, 130 Nuclear weapons merit separate consideration, both 
because of their inherent importance and because of the intensity of the debate 
about whether their use could ever be compatible with the law of weaponry. 
Those who argue that it could not have tended to base their case on one or 
more of three propositions. 

• That there exists in international law a specific prohibition of the use of 
nuclear weapons. Since there is evidently no treaty of general application 
containing such a prohibition, this argument is based upon a series of 
resolutions adopted by the United Nations General Assembly over the years; l 

• That one of the other specific prohibitions applies directly, or by analogy, 
to nuclear weapons. The prohibitions on which reliance is usually placed being 
those on chemical weapons and poisoned weapons; and 

• That any use of nuclear weapons would inevitably violate one or more of 
the general principles of the law of weaponry. 

These arguments have been fully canvassed both in the literature 132 and in the 
submissions of certain States to the International Court of Justice in the 
proceedings on the request for an Advisory Opinion on the Legality of the Threat 
or Use of Nuclear Weapons. 133 

Those who take a contrary view do not, for the most part, deny that the law 
of weaponry is applicable to nuclear weapons. Indeed, it is striking that none of 
the nuclear-weapon-States which made submissions to the International Court 
of Justice took such a position. 134 The only respect in which the law of 
weaponry does not apply to nuclear weapons is that the innovative provisions 
introduced by Additional Protocol I were adopted on the understanding that 
they would not apply to the use of nuclear weapons. 135 They maintain, 
however, that there is no specific prohibition of the use of nuclear weapons in 
international law, that the prohibitions on chemical weapons and poison do 
not extend to nuclear weapons, and that it is possible to envisage 
circumstances in which nuclear weapons could be used without violating the 
general principles. 

In some respects, the Court's Advisory Opinion has clarified the issues in 
this debate. 136 The Court found (by eleven votes to three) that there was no 
specific prohibition of nuclear weapons, the majority taking the view that the 
General Assembly resolutions were insufficient to create a rule of customary 
international law in view of the strong opposition and contrary practice of a 
significant number of States. 137 The Court also rejected the argument that 
nuclear weapons were covered by the prohibitions on chemical weapons or 
poisoned weapons. The Court found that the various treaties on chemical and 
biological weapons had "each been adopted in its own context and for its own 

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reasons" and concluded that the prohibition of other weapons of mass 
destruction did not imply the prohibition of nuclear weapons, while the ban on 

poisoned weapons had never been understood by States to apply to nuclear 

us 
weapons. 

Given the Court's conclusions on these points (which, it is submitted, are 
manifestly correct), the Court necessarily concentrated on the application to 
nuclear weapons of the general principles. The Court referred, in particular, to 
the prohibition of weapons calculated to cause unnecessary suffering, the 
prohibition of attacks upon civilians and of the use of indiscriminate methods 
and means of warfare, and the principle protecting neutral States from 
incursions onto their territory. Although the Court noted that the use of 
nuclear weapons was "scarcely reconcilable" with respect for these principles, it 
concluded that it did not have: 

[Sufficient elements to enable it to conclude with certainty that the use of 
nuclear weapons would necessarily be at variance with the principles and rules of 
law applicable in armed conflict in any circumstance. 139 

This passage suggests that the Court should therefore have concluded that the 
use of nuclear weapons was not unlawful in all circumstances. In fact, however, 
it adopted, by seven votes to seven on the casting vote of the President, the 
following conclusion: 

It follows from the above-mentioned requirements that the threat or use of 
nuclear weapons would generally be contrary to the rules of international law 
applicable in armed conflict, and in particular the principles and rules of 
humanitarian law; 

However, in view of the current state of international law, and of the elements of 
fact at its disposal, the Court cannot conclude definitively whether the threat or 
use of nuclear weapons would be lawful or unlawful in an extreme circumstance 
of self-defence, in which the very survival of a State would be at stake. 140 

The Opinion is not easy to follow at this point. In the absence of a specific 
prohibition of the use of nuclear weapons, the only basis upon which the Court 
could have concluded, consistently with its own earlier reasoning, that such 
use was illegal in all circumstances would have been by analyzing the 
circumstances in which nuclear weapons might be used and then applying the 
principles of humanitarian law which were relevant. At the heart of any such 
analysis would have been three questions. 

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Christopher Greenwood 



• Would the use of a nuclear weapon in the particular circumstances inflict 
unnecessary suffering upon combatants? 

• Would the use of a nuclear weapon in the particular circumstances be 
directed against civilians or indiscriminate, or, even if directed against a 
military target, be likely to cause disproportionate civilian casualties ? 

• Would the use of a nuclear weapon in the particular circumstances be 
likely to cause disproportionate harmful effects to a neutral State ? 

To answer those questions would have required both a factual appreciation of 
the capabilities of the weapon being used and the circumstances of its use and a 
value judgement about whether the adverse consequences of that use were 
"unnecessary" or "disproportionate" when balanced against the military goals 
which the State using the nuclear weapon was seeking to achieve. 

The Court did not, however, attempt that task but merely enumerated the 
relevant principles, with little discussion, before reaching the conclusions 
quoted above. 141 It is not clear, therefore, how it arrived at its conclusion that 
the use of nuclear weapons would "generally be contrary to the rules of 
international law applicable in armed conflict," nor, indeed, what it meant by 
the term "generally" in this context. It is clear, both from the voting on 
paragraph 2E of the dispositif and from some of the separate and dissenting 
opinions, that there was a considerable divergence of views within the Court. 

Nevertheless, if one looks at the Opinion as a whole, the only interpretation 
of the first part of paragraph 2E which can be reconciled with the reasoning of 
the Court is that, even without the qualification in the second part o{ the 
paragraph, the Court was not saying that the use of nuclear weapons would be 
contrary to the law of armed conflict in all cases. It could only have reached 
such a conclusion if it had found that there were no circumstances in which 
nuclear weapons could be used without causing unnecessary suffering, striking 
civilians and military targets indiscriminately (or with excessive civilian 
casualties), or causing disproportionate damage to neutral States. The Court 
did not make such an analysis, and the reasoning gives no hint that it reached 
such a conclusion. Indeed, it is difficult to see how it could have done so. In 
considering the application of principles of such generality to the use of 
weapons in an indefinite variety of circumstances, the Court could not have 
determined that as a matter oilaw a nuclear weapon could not be used without 
violating one or more of those principles, 142 even if some o( its members 
suspected as a matter oijact that that was so. 

This reading of the Opinion is reinforced by the fact that there is only one 
other basis upon which the second part of paragraph 2E of the dispositif could 
make sense. That is that, although the use of nuclear weapons would always be 

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The Law of Weaponry 



contrary to the law of armed conflict, the Court was not prepared to exclude 
the possibility that there might be circumstances in which the right of a State to 
self-defense could override the prohibition imposed by the law o{ armed 
conflict. Although that interpretation has received a measure of support, 143 it 
flies in the face of the long established principle that the law of armed conflict 
applies equally to both sides in a conflict. To hold that the party exercising the 
right of self -defense can depart from fundamental principles of the law of armed 
conflict would drive a coach and horses through that principle. 144 

The Court's Opinion has attracted an enormous amount of interest among 
academic commentators. It is a mark of the ambiguity of the Opinion in general 
and o( paragraph 2E in particular, that some commentators have seen it as 
largely vindicating the position of the nuclear-weapons States, while others 
have claimed it as a victory for the anti-nuclear lobby. 145 The present writer 
finds the analysis of the first group the more persuasive. 

V. The Applicability to Weaponry of Other Rules of International Law 

It is tempting to take the view that once States resort to the use of force, the 
law of armed conflict, as lex specialis, takes over from all other parts of 
international law. On this view, the use of methods and means of warfare is 
governed exclusively by the law o( weaponry. In practice, however, that law 
does not operate in isolation and the rest of international law cannot be 
disregarded in determining whether the use of a particular weapon is lawful. 
Three other areas of international law, all of which were considered by the 
International Court of Justice in its Advisory Opinion on the Legality of the Threat 
or Use of Nuclear Weapons, are potentially relevant. 

First, it has sometimes been suggested that the use of particular weapons, 
especially nuclear weapons, would violate the right to life under human rights 
treaties. 146 The United Nations Human Rights Committee, for example, has 
commented that "the designing, testing, manufacture, possession and 
deployment of nuclear weapons are amongst the greatest threats to the right 
to life which confront mankind today." 147 However, warfare invariably 
involves the taking o( life and it is clear that the human rights treaties were 
not intended to outlaw all military action even in self-defense. By prohibiting 
the arbitrary taking of life, Article 6 of the 1966 International Covenant on 
Civil and Political Rights, and the comparable provisions in other human 
rights treaties, imply that not all taking of life is prohibited. The travaux 
preparatoires of Article 6 make clear that, in the context of warfare, the term 
"arbitrary" was intended to mean the taking of life in circumstances which 

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Christopher Greenwood 



were contrary to the law of armed conflict, and killing in the course of a "lawful 
act of war" was expressly given as an example of a taking of life that would not 
be arbitrary. 148 

This was the view taken by the International Court of Justice in the Nuclear 
Weapons case. The Court accepted that the protection of the International 
Covenant (and, by implication, other human rights treaties) did not cease in 
time of armed conflict but held that: 

The test of what is an arbitrary deprivation of life, however, then falls to be 
determined by the applicable lex specialis, namely, the law applicable in armed 
conflict, which is designed to regulate the conduct of hostilities. Thus whether a 
particular loss of life, through the use of a certain weapon in warfare, is to be 
considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, 
can only be decided by reference to the law applicable in armed conflict and not 
deduced from the terms of the Covenant itself. 149 

This conclusion, though no doubt unwelcome to some human rights 
lawyers, is plainly correct in view both of State practice and the travaux 
preparatoires o( the Covenant. Nevertheless, the Court's acceptance that 
human rights treaties continue to apply in time of war (except insofar as 
derogation is expressly permitted) may be of considerable importance in other 
cases. Although the right to life may add nothing to international 
humanitarian law at the substantive level, human rights treaties contain 
unique mechanisms for enforcement which may be of great assistance to 
individuals seeking to rely upon the right to life in order to show that there has 
been a violation of the law of armed conflict. 150 

Secondly, it has been suggested, again primarily in relation to nuclear 
weapons, that international environmental law is applicable to the use of 
weapons. 151 In the Nuclear Weapons case, the Court stated that "the issue is not 
whether the treaties relating to the protection of the environment are or are 
not applicable during an armed conflict, but rather whether the obligations 
stemming from these treaties were intended to be obligations of total restraint 
during military conflict." 152 It rejected the argument that the use of nuclear 
weapons was prohibited as such by the general environmental treaties or by 
customary environmental law. 153 It would have been extraordinary for the 
Court to have concluded that nuclear weapon States, which had so carefully 
ensured that treaties on weaponry and the law of armed conflict did not outlaw 
the use of nuclear weapons, had relinquished any possibility of their use by 
becoming parties to more general environmental agreements. Nevertheless, 
the Court indicated that the international law on the environment does not 

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The Law of Weaponry 



altogether cease to apply once an armed conflict breaks out, and it seems that it 
found the origins of what it identified as a customary law duty of regard for the 
environment in times of war 154 as much in the general law on the environment 
as in the specific provisions of the law of armed conflict. 
Finally, the Nuclear Weapons case confirms that: 

A threat or use of force by means of nuclear weapons that is contrary to Article 2, 
paragraph 4 of the United Nations Charter and that fails to meet all the 
requirements of Article 51, is unlawful. 155 

This proposition was not contested by any o{ the States which submitted 
arguments to the Court. 

The Court held that the right of self-defense under Article 51 of the Charter 
was subject to the limitations of proportionality and necessity which it had 
earlier held, in the Nicaragua case, 156 were part of the right of self-defense at 
customary international law. 157 It also concluded that, although neither Article 
2(4) nor Article 51 refers to specific weapons, the need to ensure that a use of 
force in self-defense was proportionate had implications for the degree of force 
and, consequently, for the weaponry which a State might lawfully use. The 
proportionality requirement of self-defense thus had an effect upon the legality 
of the way in which a State conducted hostilities. In determining whether the 
use of a particular weapon in a given case was lawful, it was therefore necessary 
to look at both international humanitarian law and the requirements of the 
right of self-defense. 

The Court's opinion on this point is of considerable importance. The logic 
of the Charter and customary law provisions on self-defense means that the 
modern jus ad bellum cannot be regarded as literally a "law on going to war," 
the importance of which fades into the background once the fighting has 
started and the jus in bello comes into operation. 158 The jus ad bellum imposes 
an additional level o{ constraint upon a State's conduct of hostilities, 
affecting, for example, its choice o( weapons and targets and the area of 
conflict. The Court did not, however, accept, as some commentators had 
argued, that the use of nuclear weapons could never be a proportionate 
measure of self-defense. 159 In reaching this conclusion, it appears to have 
accepted that proportionality has to be assessed, as Judge Higgins put it, by 
considering "what is proportionate to repelling the attack" and not treated as 
"a requirement of symmetry between the mode oi the initial attack and the 
mode of response." 160 

It is evident, therefore, that the legality of the methods and means of warfare 
can no longer be considered by reference to the law of weaponry alone. 

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Christopher Greenwood 



Especially when one considers the more destructive weapons, the law of the 
United Nations Charter will be a significant factor to be borne in mind. Human 
rights law and international environmental law may also have some 
importance, although their application is likely to have only a small impact on 
the substantive law applicable to the use of particular weapons. 

VI. The Future of the Law of Weaponry 

• 
This stocktaking of the law of weaponry at the end of the twentieth century 
shows that this part of the law of armed conflict, while not one of the most 
effective, cannot be disregarded as an anachronism. The adoption of new 
treaties on weapons of real military significance, such as chemical weapons and 
land mines, demonstrates that it is possible to develop legal regimes which, if 
they are made to function properly, can have a significant impact in protecting 
the values of humanitarian law. Similarly, the Advisory Opinion on Nuclear 
Weapons, whatever its shortcomings, shows that the general principles of the 
law are capable of developing in such a way that they can be applied to new 
types of weapon. How then is the law likely to evolve as we enter the new 
millennium? 

The outline oi two developments is already visible. First, the trend of 
extending the law of weaponry from international armed conflicts to conflicts 
within States is likely to prove irreversible. Application to such conflicts has 
already been the subject of express provision in the two latest agreements on 
land mines and the Chemical Weapons Convention. In addition, the logic of 
the position taken by the International Criminal Tribunal for the Former 
Yugoslavia in the Tadic case and the general trend towards the development of 
the law of internal conflicts means that most, if not all, of the law of weaponry is 
likely to become applicable in internal conflicts in time. There is every reason 
why this should be so. While arguments against extending parts of the law of 
international armed conflicts, such as those which create the special status of 
prisoners of war, to internal hostilities have some force, there is no compelling 
argument for accepting that a government may use weapons against its own 
citizens which it is forbidden to use against an international adversary, even in 
an extreme case of national self-defense. 

Secondly, it seems probable that the concept of penal sanctions for those 
who violate the law of weaponry will become far more important in the future. 
The Chemical Weapons Convention and the 1997 Land Mines Convention 
both make express provision for the enactment of criminal sanctions. 161 
Certain violations of the principle of distinction are included in the grave 

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The Law of Weaponry 



breaches regime by Additional Protocol I, Article 85. Moreover, any serious 
violation of the laws of war is already a war crime and this would include a 
serious violation of one of the weaponry treaties or a general principle such as 
that prohibiting unnecessary suffering. However, the existence of the two ad 
hoc criminal tribunals and the development of their jurisprudence, together 
with the likelihood of a future permanent international criminal court with an 
extensive war crimes jurisdiction, means that these sanctions are likely to be far 
more significant in the future. How far this is a desirable development is 
another matter. While the present writer strongly supports the principle of 
effective criminal sanctions for violations of the law of armed conflict, it has 
been seen that the general principles of the law of weaponry — and, indeed, 
some of the specific provisions — are far from clear or easy to apply. It would be 
quite wrong to hold individual servicemen, especially low down the chain of 
command, criminally responsible for the good faith use of weapons with which 
their government has provided them. Moreover, the preparatory talks on the 
international criminal court have shown a disturbing tendency to try to use the 
negotiation of the Court's statute as a way of revising the substantive law on 
weaponry, thus risking upsetting the work of more specialized conferences. 

It is less easy to speculate as to what weapons might be made the subject of 
new agreements for the prohibition or limitation of their use. Incendiary 
weapons, fuel-air explosives, and napalm have all attracted considerable 
opprobrium over the last part of the twentieth century and are likely to face 
further calls for their limitation or outright prohibition. The precedent of the 
campaign against land mines, which attracted far greater publicity than do 
most developments in the law of armed conflict, suggests that future calls for 
changes in the law of weaponry may come as much from NGOs and public 
opinion as from governments. Such a change is both desirable and in keeping 
with the spirit of the Martens Clause. It carries the danger, however, that some 
of these calls will be unrealistic both in failing to recognize that States must be 
able to defend themselves and in the expectations which they create about 
what can be achieved. 

One of the most important issues is likely to be the future of nuclear 
weapons. The inconclusive Opinion of the International Court of Justice 
included a unanimous finding that: 

There exists an obligation to pursue in good faith and bring to a conclusion 
negotiations leading to nuclear disarmament in all its aspects under strict and 
effective international control. 162 

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Christopher Greenwood 



Although this paragraph adds little of substance to the Non-Proliferation 
Treaty, it has already led to calls for fresh negotiations on nuclear 
disarmament. In this writer's view, attempts to achieve a ban on the use of 
nuclear weapons are unlikely to succeed in the foreseeable future and would 
probably prove Counter-productive in that they will block progress in other 
areas (as happened with attempts to reform the law of armed conflict in the 
1950's). As far as the possession of nuclear weapons is concerned, a ban is likely 
to prove possible only if all the nuclear-weapons States (declared and 
undeclared) support it, and such a result could not be achieved without 
simultaneous progress on a range of related security issues. 

One of the most important developments may well prove to be the 
application to new types of weaponry of the existing general principles. The 
Advisory Opinion in the Nuclear Weapons case has demonstrated that these 
principles are capable of being applied to weapons of a kind which was beyond 
contemplation when those principles were first developed. The flexibility of 
the general principles thus makes them of broader application than the specific 
provisions which are all too easily overtaken by new technology. If the speed of 
change in military technology continues into the next century (as seems almost 
inevitable), 163 that capacity to adapt is going to be ever more important. 

Take one example. Suppose that it became possible for a State to cause 
havoc to an enemy through the application of electronic measures or the 
selective planting of computer viruses which brought to a standstill whole 
computer systems and the infrastructure which depended upon them. Such a 
method of warfare would appear to be wholly outside the scope of the existing 
law. Yet that is not really so. The application of those measures, though not 
necessarily an "attack" within the meaning of Additional Protocol I because no 
violence need be involved, 164 is still likely to affect the civilian population and 
possibly to cause great damage and even loss of life amongst that population. 
As such, it should be subject to the same principles of distinction and 
proportionality considered above. 

The application of the general principles of such forms of warfare would, 
however, require a measure of refinement of those principles. The place in the 
concept of proportionality which should be given to indirect, less immediate 
harm to the civilian population would have to be resolved. Similarly, if the 
principle of distinction is to be applied to existing, let alone new, weapons of 
naval warfare, a clearer assessment needs to be made of exactly what 
constitutes a legitimate target in naval hostilities. Both the military and 
humanitarian aspects of the unnecessary suffering principle need to be clarified 
if that principle is to have a significant impact in the assessment of new 

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The Law of Weaponry 



methods and means of warfare. The duty which States have to scrutinize 
developments in weaponry and to assess whether any new weapons or methods 
of warfare comply with the law 165 means that the resolution of such questions is 
a matter of considerable importance. 

In this writer's opinion, it is both more probable and more desirable that the 
law will develop in this evolutionary way than by any radical change. With the 
law of weaponry, as with most of the law of armed conflict, the most important 
humanitarian gain would come not from the adoption of new law but the 
effective implementation of the law that we have. That should be the priority 
for the next century. 



Notes 



1. For example, the Second Lateran Council in 1139 attempted to ban the crossbow. 
Prohibitions of particular weapons or methods of warfare are to be found in several different 
traditions. See UNESCO, INTERNATIONAL DIMENSIONS OF HUMANITARIAN LAW (1988) , and 
Waldemar A. Solf, Weapons, in 4 RUDOLF BERNHARDT ET AL, ENCYCLOPAEDIA OF PUBLIC 
INTERNATIONAL LAW 352 (1982) . The more recent history of this area of the law is discussed in 
Frits Kalshoven, Arms, Armaments and. International Law, 191 RECUEIL DES COURS 185-341 
(1985-11). Strictly speaking, the "means of warfare" refers to the weapons themselves, whereas 
the "methods of warfare" refers to the ways in which those weapons are used. The term "the law 
of weaponry" is here used to describe the legal rules and principles relating to methods and means 
of warfare. 

2. This principle is discussed in Part IV, infra. 

3. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of July 8, 1996) , 
1996 I.C.J. 226. 

4. Respect For Human Rights in Armed Conflicts: Existing Rules of International Law 
Concerning the Prohibition or Restriction of Use of Specific Weapons, U.N. Doc. A/9215, vol. I, 
at 204 (1973). The list was based upon the entries in national manuals of military law. See, e.g., 

United Kingdom War Office, The Law of War on Land (Part III of the Manual of 

Military Law) 110(1958). 

5. Sir Hersch Lauterpacht, Oppenheim's International Law 340-1 (7th ed. 
1952). 

6. Geneva Protocol Prohibiting the Use in War of Asphyxiating, Poisonous or other Gases 
and of Bacteriological Methods ofWarfare, June 17, 1925, 26 U.S.T. 571 (1975), 94 L.N.T.S. 65 
[hereinafter Geneva Gas Protocol] ; Convention on the Prohibition of Development, Production 
and Stockpiling of Bacteriological (Biological) and Toxin Weapons and their Destruction, April 
10, 1972, 26 U.S.T. 583 (1975), 1015 U.N.T.S. 164 [hereinafter Bacteriological and Toxin 
Weapons Convention]; Convention on the Prohibition of Development, Production, 
Stockpiling and Use of Chemical Weapons and on their Destruction, Jan. 13, 1993, 32 I.L.M. 
800 (1993) [hereinafter Chemical Weapons Convention]. 

7. Additional Protocol No. IV on Blinding Laser Weapons, Oct. 13, 1995 [hereinafter 
Lasers Protocol] to the Convention on Prohibitions or Restrictions on Certain Conventional 
Weapons which may be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 

222 



Christopher Greenwood 



35 I.L.M. 1218 (1996) [hereinafter Conventional Weapons Convention]. The Convention itself 
is at 19 LLM. 1523(1980). 

8. Additional Protocol II on Mines, Booby-Traps and Other Devices to the Conventional 
Weapons Convention, 1980, 19 I.L.M. 1523 (1980) [hereinafter Original Mines Protocol], 
Amended Additional Protocol II, May 3, 1996, 35 I.L.M. 1206 (1996) [hereinafter Amended 
Mines Protocol] and the United Nations Convention on the Prohibition of the Use, Stockpiling, 
Production and Transfer of Anti-Personnel Mines and on their Destruction, Sept. 18, 1997, 36 
I.L.M. 1507 (1997) [hereinafter Land Mines Convention]. 

9. Legality of the Threat or Use of Nuclear Weapons , supra note 3. 

10. See William J. Fenrick, The Development of the Law of Armed Conflict through the 
Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, and Theodor Meron, 
War Crimes Law for the Twenty-First Century, both in this volume. 

11. U.S. War Dep't, General Orders No. 100, April 24, 1863, reprinted in THE LAWS OF 
ARMED CONFLICTS 3 (Dietrich Schindler & Jiri Toman eds., 3d ed. 1988). 

1 2. Id., art. 16. For a discussion of this aspect of the Code, see Burrus M. Carnahan, Lincoln, 
Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity, 92 AM. J. 
INT'LL. 213 (1998). 

13. Brussels Conference, Project of an International Declaration Concerning the Laws and 
Customs of War, 1874, Arts. 12 & 13, 65 Brit, and Foreign State Papers (1873-74) 1005, 
reprinted in THE LAWS OF ARMED CONFLICTS, supra note 11, at 25. The declaration never 
entered into force. 

14- Institute of International Law, Manual of the Laws of War on Land, 5 ANNUAIRE DE 

L'insitut de Droit International 156 (1881-82), reprinted in The Laws of armed 
Conflicts, supra note 1 1, at 35. 

15. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 
Grammes Weight, 1868, 58 Brit, and Foreign State Papers (1867-68) 16 [hereinafter St. 
Petersburg Declaration], reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 101. 

16. Regulations Respecting the Laws and Customs of War on Land annexed to Hague 
Convention No. IV, Oct. 18, 1907, 2 U.S.T. 2269, reprinted in THE LAWS OF ARMED 
CONFLICTS, supra note 1 1, at 63 [hereinafter Hague Regulations] . The 1907 Regulations were a 
revised version of an earlier set of regulations annexed to Hague Convention No. II, July 29, 
1899, 2 U.S.T. 2042, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 63. 

17. 1 AM. J. INT'L L. 155 (1907 Supp.), reprinted in THE LAWS OF ARMED CONFLICTS, 
supra note 11, at 105 

18. Id. at 157, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 109. 

19. Id. at 153, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 201. The 
Declaration was renewed in 1907 until the opening of the Third Peace Conference, an event 
which has never occurred. 2 AM. J. INTL L. 216 (1908 Supp.), reprinted in THE LAWS OF 
ARMED CONFLICTS, supra note 11, at 201. This Declaration is no longer regarded as being in 
force and, unlike the other two, is not considered to be declaratory of a rule of customary 
international law. 

20. Hague Regulations, supra note 16. 

21. T.S. No. 541 , reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 803. For 
a particularly interesting discussion of this treaty, see HOWARD S. LEVIE, MINE WARFARE AT 
SEA (1991). 

22. Supra note 6. 

23. Supra note 6. 

24. Supra note 6. 



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The Law of Weaponry 



25. Geneva Convention No. I for the Amelioration of the Condition of the Wounded and 
Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 3 1 (1950) ; Geneva 
Convention No. II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked 
Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 (1950); 
Geneva Convention No. Ill Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 
U.S.T. 3316, 75 U.N.T.S. 135 (1950); and Geneva Convention No. IV Relative to the 
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 
(1950) . The four Conventions are reprinted in THE LAWS OF ARMED CONFLICT, supra note 1 1 , 
at 373, 401, 423, & 495, respectively. 

26. Additional Protocol I, Relating to the Protection of Victims of International Armed 
Conflicts, 1125 U.N.T.S. 3 (1979), 16 I.L.M. 1391 (1977) [hereinafter Additional Protocol I]; 
Additional Protocol II, Relating to the Protection of the Victims of Non- International Armed 
Conflicts, 1125 U.N.T.S. (1979) 609, 16I.L.M. 1391 (1977), reprinted in THE LAWS OF ARMED 
CONFLICT, supra note 1 1, at 621 & 689. 

27. Additional Protocol I, supra note 26, art. 35(1) & (2). 

28. Id., arts. 51(2)-(5), 52(1) & (2). Most of these provisions reflect customary law, 
although that is not true of the prohibition of reprisals against civilian objects in Article 52(1) See 
Christopher Greenwood, The Customary Law Status of the 1977 Additional Protocols, in 

Humanitarian Law of Armed Conflict: Challenges Ahead 93 (Astrid Dehssen & 

Gerard Tanja eds., 1991). 

29. Additional Protocol I, supra note 26, arts. 35(3) & 55. 

30. 31 U.S.T. 333, 1108 U.N.T.S. 151 (1978), reprinted in THE LAWS OF ARMED 
CONFLICT, supra note 11, at 163 thereinafter the ENMOD Convention!. 

31. Supra note 7. 

32. Supra notes 7 & 8. 

33. U.N. Charter art. 51. 

34- See Legality of the Threat or Use of Nuclear Weapons, supra note 3, at 262-3. 

35. This principle, like the others mentioned in the present paragraph, is discussed in 
greater detail in Part IV, infra. 

36. Additional Protocol I, supra note 26, art. 38. 

37. Additional Protocol I, supra note 26, art. 39(2). This provision goes beyond the rules of 
customary law, which prohibited the wearing of enemy uniforms only during an attack itself. See 
United States v. Skorzeny, 9 War Crimes Reports 90. The fact that the law of naval warfare is 
entirely different from the law of war on land in relation to this matter is a further illustration of 
the absence of any clear humanitarian purpose behind this rule; see text accompanying notes 
81-9 infra. 

38. See text accompanying notes 7-8 supra. 

39. The Conference also unanimously adopted a resolution to the effect that "the 
Conference is of the opinion that the restriction of military charges, which are at present a heavy 
burden on the world, is extremely desirable for the increase of the moral and material welfare of 
mankind." A. PEARCE HlGGINS, THE HAGUE PEACE CONFERENCES 67 (1909). 

40. Kalshoven, supra note 1, at 214-15. 

41. Chemical Weapons Convention, supra note 6. See also the discussion in Part IV, infra. 

42. The same was true of the reaction to early firearms. See LESLIE C. GREEN, THE 

Contemporary Law of armed Conflict 122-3 (1993). 

43. Records of the First Hague Peace Conference, published by the Netherlands Ministry of 
Foreign Affairs, 1907, Part II, at 65. 

44. See Part IV, sect. 2, infra. 



224 



Christopher Greenwood 



45. Prosecutor v. Tadic Ourisdiction), 105 I.L.R. 419, 504-20 (1995). For comment, see the 
article by Fenrick, supra note 10, and Christopher Greenwood, International Humanitarian Law 
and the Tadic Case, 7 EUR. J. INTL L. 265 (1996). For subsequent proceedings in Tadic, see 36 
I.L.M. 908 (1997). 

46. Prosecutor v. Tadic (Jurisdiction), supra note 45, at 516, para. 119. 

47. Legality of the Threat or Use of Nuclear Weapons, supra note 3, at 266, para. 2(A), of 
the dispositif. The Court was unanimous on this point. 

48. Id,, para. 2(B) (by eleven votes to three). 

49. Id. at 247, para. 52. 

50. Although the principle of necessity has frequently been seen as justifying violence, in 
reality it is a restraining principle, requiring belligerents not to injure, kill or damage unless that is 
necessary for the achievement of legitimate military goals. See Carnahan, supra note 12. 

51. The first two are outlawed by the St. Petersburg Declaration, supra note 15, and the last 
by the 1899 Declaration No. 3, supra note 18. 

52. The origins of this ban also lie in the principle that civilians should be protected from 
acts of violence and that indiscriminate weapons are prohibited. However, the influence of the 
unnecessary suffering principle is evident in the travaux preparatoires of both 1899 Declaration 
No. 2, supra note 17, and the 1925 Geneva Gas Protocol, supra note 6. 

53. Hague Regulations, supra note 16, art. 23(a). 

54- Protocol I to the Conventional Weapons Convention, supra note 30. 

55. That would be the case where, for example, no more humane alternative was available. 

56. 32 I.L.R. 626 at 634 (1963). See also Dissenting Opinion of Judge Higgins, Legality of 
the Threat or Use of Nuclear Weapons, supra note 3, at 585-7, and Kalshoven, supra note 1, at 
234-6. 

57. International Committee of the Red Cross, Conference of Government Experts on the 
Use of Certain Conventional Weapons (Lucerne, Sept. 9 - Oct. 18, 1974) 9, para. 24 (1975) 
[hereinafter Lucerne Conference]. 

58. St. Petersburg Declaration, supra note 15, at preamble. 

59. For a somewhat extreme example of the "morale" argument, see the article by Major 
G.V. Fosbery, Explosive Bullets and their Application to Military Purposes, 12 J. ROYAL UNITED 
SERVICES INST. 15-27 (1869), discussed in Kalshoven, supra note 1, at 208-13. 

60. This was the view of some of the experts at the Lucerne Conference, supra note 57, at 9, 
para. 25. Although this approach was challenged by other experts (see Kalshoven, supra note 1, 
at 235) it clearly reflects State practice and, in the view of the present writer, is a correct 
statement of the law. 

61. For example, the use of armor- piercing weapons against tanks and warships has always 
been accepted as lawful, notwithstanding that they cause more grievous injuries to personnel 
than do simple anti-personnel weapons. Indeed, the use of inflammable bullets, banned by the 
1868 Declaration at a time when they were employed as anti-personnel weapons, came to be 
accepted as lawful some fifty years later when they were used against aircraft, notwithstanding 
the effect which they can have upon air crew (although their use in a simple anti- personnel role 
remains unlawful) . 

62. Lucerne Conference, supra note 57, at 8, para. 23. 

63. International Committee of the Red Cross, The Sirus Project: Towards a 
Determination of Which Weapons Cause "Superfluous Injury" or "Unnecessary 

SUFFERING" (Robin Coupland ed., 1997). 

64. Id. at 27. 



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The Law of Weaponry 



65. Hans Blix, Methods and Means of Combat, in UNESCO, INTERNATIONAL DIMENSIONS 

of Humanitarian Law 135, 139 (1988). 

66. For that reason, the present writer respectfully disagrees with Professor Franchise 
Hampson when she argues that Coalition forces in the 1991 Gulf fighting should have used 
infantry to clear Iraqi trenches rather than bulldozing those trenches and thus condemning large 
numbers of Iraqi soldiers to a death widely regarded as particularly horrific. In this writer's view, 
the avoidance of the Coalition casualties which trench fighting would have caused was a military 
advantage sufficient to ensure that the suffering inflicted upon the Iraqi soldiers manning the 
trenches was not "unnecessary." See Frangoise Hampson, Means and Methods of Warfare in the 
Conflict in the Gulf, in THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 89, 
104-7 (Peter Rowe ed., 1993). 

67. Frits Kalshoven, The Soldier and his Golf Clubs, in STUDIES AND ESSAYS ON 

International Humanitarian Law and Red Cross Principles 369-86 (Christophe 

Swinarskied., 1986). 

68. Unpublished paper submitted by Colonel (later Major- General) Sir David 
Hughes-Morgan, discussed in the Report of the Lucerne Conference, supra note 57, at 7-11. 

69. See Part I, supra. 

70. Additional Protocol I, supra note 26, arts. 48, 51(2) & 52(1). For these purposes, a 
combatant is a member of the armed forces (with the exception of medical personnel and 
chaplains) or someone who takes a direct part in hostilities [Art. 51(3)]. Art. 52(2) provides 
that: 

In so far as objects are concerned, military objectives are limited to those objects which by 
their nature, location, purpose or use make an effective contribution to military action, 
and whose total or partial destruction, capture or neutralisation, in the circumstances 
ruling at the time, offers a definite military advantage. 

71. Id., art. 51 (5) (b). This principle is also regarded as part of customary international law. 

72. Id., art. 57(2) (a) (ii). 

73. On this subject, see ANTHONY P.V. ROGERS, LAW ON THE BATTLEFIELD 7-46 (1996) , 
William Fenrick, Attacking the Enemy Civilian as a Punishable Offence, 7 DUKE J. OF COMP. & 
INT'L L. 539 (1997), and Christopher Greenwood, Current Issues in the Law of Armed Conflict: 
Weapons, Targets and International Criminal Liability, 1 SINGAPORE J. INT'L & COMP. L. 441, 
459-62 (1997). 

74- The annotated edition of NWP 1-14M gives as an example of an inherently 
indiscriminate weapon the "bat bomb" developed but never used by the U.S. Navy during the 
Second World War. This weapon would have consisted of a bat with a small incendiary bomb 
attached to it. The bats would have been released over Japan, U.S. DEPT OF THE NAVY, 
ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL 
OPERATIONS (NWP M4M/MCWP 5-2.1/COMDTPUB P5800.1), para. 9.1.2, n. 12 (1997) 
[hereinafter ANNOTATED HANDBOOK]. See also JACK COUFFER, BAT BOMB (1992). 

75. But see the comments of the Trial Chamber of the International Criminal Tribunal for 
the Former Yugoslavia, Prosecutor v. Martic (Rule 61) 108 I.L.R. 39, 47-52. 

76. Christopher Greenwood, Customary International Law and the First Geneva Protocol of 
1977 in the Gulf Conflict, in Rowe, supra note 66, at 63. 

77. Additional Protocol I prohibits such attacks even by way of reprisal, but on this point 
the Protocol is not declaratory of customary law; Greenwood, supra note 28, at 110-111, and 
Twilight of the Law of Belligerent Reprisals, 20 NETH. Y.B. INT'L L. 35 (1989). The United 
Kingdom entered a reservation to the reprisals provisions when ratifying the Protocol in January 
1998. Letter of 28 January 1998 to the President of the Swiss Confederation, not yet published. 



226 



Christopher Greenwood 



78. International Committee of the Red Cross, Commentary on the 
ADDITIONAL PROTOCOLS, para. 1980 (Yves Sandoz et al. eds., 1987). 

79. See the essays in THE LAW OF NAVAL WARFARE: TARGETING ENEMY MERCHANT 
SHIPPING (Richard Grunawalt ed., 1993). 

80. San Remo Manual on International Law Applicable to Armed Conflicts 

AT SEA, 1 14 et seq. & 167-8 (Louise Doswald-Beck ed., 1995) . 

81. Although it has sometimes been suggested that poison and poisoned weapons are 
perfidious, the prohibition of those weapons, which has long been the subject of a specific rule, 
probably owes more to perceptions that they cause unnecessary suffering and are difficult to use 
in a discriminating way. 

82. The prohibition of the unauthorized use of the United Nations emblem and the 
provision in Article 37(1) (d) were intended to apply only where the United Nations was 
involved in a conflict in a peacekeeping or other impartial role and not where the United 
Nations itself had committed forces to combat. Sandoz, supra note 78, para. 1560. 

83. See text accompanying note 37, supra. 

84. Robert W.Tucker, The Law of War and Neutrality at Sea 138-42 (1955). 

85. Additional Protocol I, supra note 26, art. 39(3). 

86. SAN REMO MANUAL, supra note 80, at 186. 

87. ANNOTATED HANDBOOK, supra note 74, ch. 12, esp. para. 12.7 & n. 23. 

88. Contrast the explanation to paragraph 111 of the SAN REMO MANUAL, supra note 80, 
at 186, with TUCKER, supra note 84, at 140-1. 

89. San Remo Manual, supra note 80, at 185. 

90. ENMOD, supra note 30. 

91. See, e.g, the paper by the International Committee of the Red Cross in Report of the 
Secretary-General on the Protection of the Environment in Times of Armed Conflict, United 
Nations Doc. A/48/269, at 25. See also ENVIRONMENTAL PROTECTION AND THE LAW OF WAR 
(Glen Plant ed., 1992). 

92. See also art. 55. The terms "widespread, long-term and severe" in the Protocol do not 
carry the same meaning as "widespread, long-lasting or severe" in the ENMOD Treaty. Not only 
are the three requirements cumulative in Additional Protocol I, whereas they are alternatives in 
ENMOD, the travaux preparatoires of the two agreements demonstrate that "long-lasting" in the 
ENMOD Treaty was intended to refer to effects which lasted for approximately a season (see the 
Understanding adopted in relation to this term by the Conference of the Committee on 
Disarmament, quoted in DOCUMENTS ON THE LAWS OF WAR 377-8 (Adam Roberts and 
Richard Guelff eds., 1989)), whereas "long-term" in Additional Protocol I was intended to 
convey a sense of something to be measured "in decades rather than months." Sandoz, supra note 
78, at 417. 

93. See the statement to this effect by the Federal Republic of Germany, VI OFFICIAL 
RECORDS OF THE DIPLOMATIC CONFERENCE 115 (prepared by the Foreign Ministry of 
Switzerland). Articles 35 (3) and 55 were not included in the list of provisions deemed to be part 
of customary law which appears in the International Committee of the Red Cross Commentary 
on the Additional Protocols (Sandoz, supra note 78, paras. 1857-9) and the International Court 
did not treat them as declaratory of custom in the Nuclear Weapons case, supra note 3, at 242, 
para. 31. See also Kalshoven, supra note 1, at 283. 

94. Annotated Handbook, supra note 74, para. 8.1.3. 

95. Legality of the Threat or Use of Nuclear Weapons, supra note note 3, at 242, para. 30. 

96. G.A. Res. 47/37 (1992) on the "Protection of the Environment in Times of Armed 
Conflict." See also G.A. Res. 49/50. 



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97. See also SAN REMO MANUAL, supra note 80, at 1 19; ROGERS, supra note 73, at 127-9. 

98. Hague Regulations, supra note 16, art. 22; Additional Protocol I, supra note 26, art. 
35(1). 

99. See, e.g., the view expressed by some participants at the Lucerne Conference, supra 
note 57, at 11-12. See also Helmut Strebel, Martens Clause, in 3 ENCYCLOPAEDIA OF PUBLIC 
INTERNATIONAL Law 252-3 (R. Bernhardt ed., 1982). 

100. Kalshoven, supra note 1, at 238. 

101. On this point, see BLINDING WEAPONS (Louise Doswald-Beck ed., 1993). 

102. See, e.g., B. Anderberg, O. Bring, & M. Wolbarsht, Blinding Laser Weapons and 
International Humanitarian Law, 29 J. PEACE RESEARCH 287 (1992). 

103. See, e.g., the Memorandum of Law by the U.S. Judge Advocate -General of the Army, 
reprinted in BLINDING WEAPONS, supra note 101, at 367. 

104. See Christopher Greenwood, Analysis of the Law Applicable to the Use of Battlefield Laser 
Weapons, in id. at 71, and the ensuing discussion. 

105. 35 I.L.M. 1218 (1996). The text of the new protocol is also reproduced, together with a 
useful commentary, in Louise Doswald-Beck, The New Protocol on Blinding Laser Weapons, 36 
INT'L REV. RED CROSS 272 (1996). At 30 April 1998 there were 24 parties to the Protocol. 

106. See art. 3. Doswald-Beck, supra note 105, at 298, argues, however, that the use of laser 
weapons against optics systems is incompatible with the underlying intention of the Protocol. 

107. Roberts & Guelff, supra note 92, at 479. For a commentary on the original Protocol II, 
see A.P.V. Rogers, Mines, Booby -traps and Other Devices, 30 INTL REV. RED CROSS 521 (1990). 

108. Original Mines Protocol, supra note 8, art. 2(1), defines a mine as "any munition placed 
under, on or near the ground or other surface area and designed to be detonated or exploded by 
the presence, proximity or contact of a person or vehicle." 

109. Rogers, supra note 107, at 528. 

110. See, e.g., the ICRC booklet, Mines: A Perverse Use of Technology; P. CORNISH, 

Anti-Personnel Mines: Controlling the Plague of "Butterflies" (R.I.I.A., 1994). 

111. Amended Mines Protocol, supra note 8. At 30 April 1998 there were 19 parties to the 
Amended Protocol. 

112. Id., arts. 1(2) and (3). 

113. Doswald-Beck, supra note 105, at 287. Some States have made declarations to this 
effect when ratifying the new Protocol IV; see, e.g., the declarations by Germany, Ireland and 
Sweden. 

114. The United Nations Convention on the Prohibition of the Use, Stockpiling, 
Production and Transfer of Anti-Personnel Mines and on their Destruction, 1997, art. 1., 36 
I.L.M. 1507 (1997). 

115. Id., art. 2. 

116. Id., art. 9. 

117. Chemical Weapons Convention, supra note 6. At 30 April 1998 there were 1 08 parties. 

118. Roberts & Guelff, supra note 92, at 137. See also the prohibition on poison and 
poisoned weapons codified in Article 23(a) of the Hague Regulations in Land Warfare, 1907, 
and the 1899 Hague Declaration No. 2 Regarding Asphyxiating Gases, notes 17 and 20, supra. 

119. See, e.g., the United Kingdom Reservation, reprinted in Roberts & Guelff, supra note 92, 
at 144. These reservations originally applied to the use of bacteriological weapons as well. For 
States Party to the 1972 Toxins Convention, however, reservation to the prohibition of such 
weapons was prohibited, so that the reservation of the right to use bacteriological weapons 
ceased to have any real substance. Even so, it was not until 1991 that the United Kingdom 



228 



Christopher Greenwood 



withdrew its reservation of the right to use bacteriological weapons, 63 BRIT. Y.B. INT'L L. 700 
(1992). 

120. See the reports of a commission of experts established by the UN Secretary-General to 
inquire into allegations of the use of chemical weapons by Iraq, U.N. Docs. S17130 (April 25, 
1985),S/17932 (March 21,1986), and S/l 8863 (May 14, 1987). The use of chemical weapons by 
Iraq was condemned in a Statement by the President of the Security Council on 21 March 1986. 
U.N. Doc. S/PV.2667, reprinted in RESOLUTIONS AND STATEMENTS OF THE UNITED NATIONS 
SECURITY COUNCIL, 1946-92, at 466 (K. Wellens ed., 1993)), but the Council's own 
resolutions were couched in cautious language and did not formally censure Iraq, let alone 
impose sanctions upon it. See S.C. Res. 598 (1987) & 620 (1988). Not until after the Kuwait 
conflict did the Security Council take action to seek out and destroy Iraq's stockpiles of chemical 
weapons. S.C. Res. 687 (1991). 

121. See the speech by Iraq's representative to the United Nations in the Security Council 
on 16 February 1991. U.N. Doc. S/PV.2977. 

122. For a detailed commentary, see W. KRUTZSCH & R. TRAPP, A COMMENTARY ON THE 

Chemical Weapons Convention (1994). 

123. See Roberts & Guelff, supra note 92, at 137-8. 

124. Chemical Weapons Convention, supra note 6, art. I, para. 5. See also art. II, paras. 7 &9; 
KRUTZSCH & TRAPP, supra note 122, at 18 & 42. 

125. KRUTZSCH & TRAPP, supra note 122, at 13. 

126. See, e.g., the statement by the Government of the United Kingdom condemning Iraq's 
use of gas against Iraqi civilians at Halabja in 1988, 59 BRIT. Y.B. INT'L L. 579 (1988), quoted 
with approval by the Appeals Chamber of the International Criminal Tribunal for Former 
Yugoslavia in Prosecutor v. Tadic (Jurisdiction) , supra note 45, at 517-18. 

127. Dissenting Opinion of Judge Schwebel, Legality of the Threat or Use of Nuclear 
Weapons, supra note 3, at 323-29. 

128. See Chemical Weapons Convention, supra note 6, art. I, para. 1. 

129. See id., art. I, paras. 3 & 4. 

130. The author appeared as one of the counsel for the United Kingdom in the proceedings 
before the International Court of Justice on the Threat or Use of Nuclear Weapons, supra note 3. 
The views expressed in the present paper are the personal views of the author and should not be 
taken as representing the position of the Government of the United Kingdom. 

131. See esp. G.A. Res. 1653 (1961), 2936 (1972), 33/71 B (1978), 35/152 D (1980), 36/92 I 
(1981), 45/59 B (1990), 46/37 D (1991), 47/53 C (1992), & 48/76 B (1993). 

132. See, e.g., N. SINGH & E. McWHINNEY, NUCLEAR WEAPONS AND CONTEMPORARY 

International Law (2d ed. 1989), G. Schwarzenberger, The Legality of Nuclear 

WEAPONS (1958), and the essays by Falk, Meyrowitz, and Weston in NUCLEAR WEAPONS AND 
LAW (Miller and Feinrider eds., 1984). 

133. See esp. Written Observations of India, Malaysia, Nauru and the Solomon Islands. 
134- See Written Observations of France, the Russian Federation, the United Kingdom and 

the United States of America. In the case of France, at least, this reflected a change of position. 
See also Kalshoven, supra note 1, at 266 et seq.\ W. Hearn, The International Legal Regime 
Regulating Nuclear Deterrence and Warfare, 61 BRIT. Y.B. INT'L L. 199 (1990); and D. 
Rauschning, Nuclear Weapons, in 4 ENCYCLOPAEDIA OF PUBLIC INTERNATIONAL LAW 44 (R. 
Bernhardt ed., 1982). 

135. See Kalshoven, supra note 1, at 281-2. 

136. For comment, see Richard Falk, Nuclear Weapons, International Law and the World 
Court, 91 AM. J. INT'L L. 64-75 (1997); Michael Matheson, The Opinions of the International 



229 



The Law of Weaponry 



Court of Justice on the Threat or Use of Nuclear Weapons, id. at 417-35; and the symposium in 37 

Inpl Rev. Red Cross 4-1 1 7 (1997) . 

137. Legality of the Threat or Use of Nuclear Weapons, supra note 3, paras. 71 and 105, part 
2(B). 

138. Id., paras. 54-7. 

139. Id., para. 95. 

140. Id., para. 105, part 2(E). 

141. See the criticism in the Dissenting Opinion of Judge Higgins, supra note 56, at 584-5. 

142. Legality of the Threat or Use of Nuclear Weapons, supra note 3, paras. 94-5. 

143. See, in particular, the Separate Opinion of Judge Fleischhauer, 1996 I.C.J. 305. 

144- For further discussion of this point, see Christopher Greenwood, Jus ad Bellum andjus in 
Bello in the Advisory Opinion on Nuclear Weapons, in THE ADVISORY OPINION OF THE 

International Court of Justice on Nuclear Weapons (P. Sands & L. Fjoisson de 

Chazournes eds., 1998). 

145. Compare Condorelli, 37 INT'L REV. RED CROSS 9 (1997) with David, id. at 21. 

146. Article 6 of the 1966 International Covenant on Civil and Political Rights, provides 
that: 

Every human being has the inherent right to life. This right shall be protected by law. No 

one shall be arbitrarily deprived of his life. 
Comparable provisions can be found in Article 2 of the European Convention on Human Rights, 
Article 4 of the American Convention on Human Rights, and Article 4 of the African Charter 
on Human and People's Rights. 

147. General Comment 14(23), U.N. Doc. A/40/40, at 162, para. 4- For comment, see 

Dominic McGoldrick, The Human Rights Committee 336 (1994). 

148. See Written Observations of the Netherlands to the International Court of Justice, 
para. 27. 

149. Legality of the Threat or Use of Nuclear Weapons, supra note 3, para. 25. 

150. See, e.g., the decisions of the European Court of Human Rights in Loizidou v. Turkey, 
103 I.L.R. 622 (1995) and 108 I.L.R. 443 (1996), and the European Commission of Human 
Rights in Cyprus v. Turkey, 23 E.H.R.R. 244 (1997), where the European Convention on 
Human Rights was invoked in a case of belligerent occupation. 

151. See, e.g., the reliance by Mexico and the Solomon Islands in their Written 
Observations to the International Court of Justice on the Rio Declaration and other 
environmental texts. 

152. Legality of the Threat or Use of Nuclear Weapons, supra note 3, para. 30. 

153. Id., paras. 30 and 33. 

154. See Part IV (1) (d), supra. 

155. Legality of the Threat or Use of Nuclear Weapons, supra note 3, para. 105, part 2(C). 

156. 1986 I.C.J. 3. 

157. Legality of the Threat or Use of Nuclear Weapons, supra note 3, para. 41. 

158. See, e.g., Christopher Greenwood, The Relationship Between Jus adBellum andjus in Bello, 
9 REV. INPL STUDIES 221 (1982), and Self-defence and the Conduct of International Armed 

Conflict, in International Law at a Time of Perplexity 273 (YoramDinsteined., 1989). 

159. Legality of the Threat or Use of Nuclear Weapons, supra note 3, paras. 42-43. 

160. 1996 I.C.J. 583. See also the views of Judge Ago as Rapporteur on State Responsibility 
for the International Law Commission, Eighth Report, II(I) Y.B.I.L.C. 69 (1980). 

It would be mistaken ... to think that there must be proportionality between the conduct 
constituting the armed attack and the opposing conduct. The action needed to halt and 



230 



Christopher Greenwood 



repulse the attack may well have to assume dimensions disproportionate to those of the 
attack suffered. What matters in this respect is the result to be achieved by the 'defensive* 
action, and not the forms, substance and strength of the action itself. 

161. See Chemical Weapons Convention, supra note 6, art. VII. For an example of national 
implementation, see the United Kingdom's Chemical Weapons Act 1996. 

162. Legality of the Threat or Use of Nuclear Weapons, supra note 3, para. 105, part 2(F). 

163. See FRANCOIS HEISBOURG, THE FUTURE OE WARFARE (1998). 

164. Additional Protocol I, supra note 26, at art. 49(1). 

165. This duty is expressly stated in Additional Protocol I, Article 36, but is regarded as part 
of customary international law. The United States of America, for example, which is not a party 
to Additional Protocol I, has long had a scrutiny program of this kind. 



231 



232 



VIII 



Nongovernmental Organizations 

in Situations of Conflict: 

The Negotiation of Change 



Franchise Hampson 



JUST AS ARMIES PLAN FOR THE NEXT WAR by learning the lessons of 
the last, so nongovernmental organizations (NGOs) in looking towards 
the future base themselves on the problems and dilemmas of the recent past. If 
the number of in- house training sessions and conferences are anything to go by, 
NGOs think they have a variety of problems. 1 The last decade of the twentieth 
century is confronting them with unexpected challenges in situations of 
conflict. It is not that the NGOs are unfamiliar with conflict; something about 
recent conflicts has changed, with particular impact on NGOs. 

Some of that change may simply be the prevalence, to a greater degree than 
in the past, of elements previously present. One such example is the attempt of 
the fighting parties to control the delivery of humanitarian assistance. This 
may be accompanied by novel, or apparently novel, forms of fighting. If an 
object of the fighting requires the direct and indirect targeting of the civilian 
population, this is likely to have an impact on NGO activities. If, for example, 
an object of the fighting is to bring about the removal of a portion of the 
population from an area (e.g., "ethnic cleansing"), the conduct of hostilities is 



NGOs in Situations of Conflict 



likely to take a different form from that of conflicts that are in effect a "simple" 
power struggle. In both cases, there may be displacement of the civilian 
population, but the manner in which that happens, the length of the resultant 
displacement, and the prospects for ultimate return, will be very different. 

Another key change in the past decade with a significant impact on NGO 
operations is the likelihood that UN or UN-authorized military personnel, 
acting under a "peace-keeping" or "peace-enforcement" mandate, will be 
found in the theater of conflict. 2 

These developments have an impact not only on NGOs but also on 
inter-governmental organizations (IGOs), such as the United Nations High 
Commissioner for Refugees (UNHCR). The fact that both NGOs and IGOs are 
adjusting to changes, possibly in different ways, simply adds to the complexity 
o( the situation. NGOs are more used to working alongside IGOs than with the 
military, but the IGOs are subject to different pressures in adjusting to change 
than are the NGOs. It can be as difficult to adapt existing relationships as to 
forge new ones. That process of adaptation is made more complicated when an 
IGO is given the role of co-ordinating NGO activities. 3 

Once NGOs recognize the need at least to reconsider existing practices, they 
are likely to encounter further difficulties. There may be a natural tendency to 
assume that existing practices based on experience are right for the particular 
NGO; challenges to assumptions, which appear to be truths to those making 
them, are painful. Each NGO has its own "mandate" or objective. Other 
organizations with different objectives may need to change, but they are the 
experts on their own areas of activity; in that field, the particular NGO has 
nothing to learn from others. Where, on the other hand, it is recognized that 
there may be something to learn from the experience and solutions of other 
NGOs, the question becomes, how relevant is the experience of others? To 
what extent can one NGO learn from the experience of others? At least by 
meeting together and sharing what each perceives to be its difficulties, there is 
the opportunity for individual NGOs to reflect on their own assumptions and 
practices. 

This only serves to emphasize one of the clearest lessons of the past decade: 
NGOs cannot be lumped together. Their aims are different and their working 
methods are dissimilar. This means that in the same situation different NGOs 
will react differently. Both UN and UN-authorized forces and the parties to a 
conflict must avoid the assumption that all NGOs will react in the same way. 
Seen from outside, NGOs have more in common with one another than they do 
with IGOs or other groups present in theater. Seen from within an NGO, 
however, the view may be otherwise. The goals, working methods, and 

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previous experience of a particular NGO may make it easy for it to work with 
UNHCR, whereas another NGO may have problems with some of UNHCR's 
working methods. 4 

This paper will first examine the diversity of NGOs that may be found in 
conflict situations. There is no attempt to be comprehensive, an attempt that 
would be doomed to failure. The object rather is to illustrate the diversity. The 
variety of conflict situations in which NGOs may find themselves will then be 
considered briefly. There is an interplay between the type of NGO and the 
varieties of conflict situations which is likely to affect the NGOs' priorities and 
their perceptions of the problems. There will then be an examination of certain 
commonly recurring themes. Again, there is no claim to be comprehensive in 
either the identification of the themes or their treatment. The themes in 
question are humanitarian assistance, medical activities, neutrality, the 
reporting of violations of applicable legal norms, and the accountability of 
NGOs, including the role of the media. The paper will conclude with a highly 
speculative and personal view of likely trends in the short to medium term. 

The Diversity of NGOs 

Any attempt to classify NGOs must be accompanied by two notes of 
caution. 5 First, classification is a tool of convenience, not a straitjacket. 
Second, an NGO may fall into more than one of the categories. 6 It must also be 
remembered, when considering NGOs in situations of conflict, that many of the 
NGOs present may not be conflict-specific because they were already working 
in a State when the fighting broke out. 7 That can include both local and 
out-of-country NGOs. This situation is likely to be particularly true of the first 
category. 

Development NGOs. Development NGOs often have long-term projects in a 
country. Their activities usually fall into the field of economic and social rights. 
They are involved in the development of the local infrastructure for the 
provision of essential needs. They may be group specific (e.g., women and 
children 8 ) or resource or issue specific (e.g., water or appropriate 
technologies 9 ). They may work throughout one or more States or just within a 
certain distinct region(s). As the view of such assistance has changed in the 
West from "charity" to development assistance, much greater attention has 
been paid to capacity building within the recipient community and to 
encouraging the participation of those whom the project is designed to assist. 10 
This involves listening as well as doing. Sustainability is more important than 

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speed. Many NGOs in this group will be used to working with or through 
governmental infrastructures, which may have the effect of helping to 
strengthen them. 11 In building up local capacity, the NGOs are seeking to avoid 
creating dependency. 

Since their work is not conflict related, there are no "sides," simply people in 
need oi assistance. The question of neutrality and impartial assistance to all 
sides does not arise. This enables development NGOs to confine their activities 
to one area within the State, even if the same need exists elsewhere. 12 For this 
group doing something somewhere is better than doing nothing at all. 

Relief NGOs. Relief NGOs are specialists in disaster assistance, whether the 
disaster is man-made or natural. They have no long-term commitment to a 
particular people or place, but rather seek to meet acute needs during periods of 
crisis. The issue of capacity building, or even infrastructure building, is not 
generally applicable. Involving the recipient community is much less important 
for relief NGOs, but they have been affected by the debates within development 
NGOs and may make token gestures in this direction. There is a danger that 
they may ignore the impact of relief on the local economy. 13 This may have a 
negative impact on long-term capacity-building, including the capacity for 
crisis management. The impact of relief can also be positive, as where the 
volume of relief available destroys a black-market. 14 The relief NGOs need to be 
experts in logistics and able to function autonomously. They cannot rely on 
finding an infrastructure in place, whether that be roads or governmental 
institutions. 

Some relief NGOs have built up a wealth of experience in a variety of 
theaters of conflict. They are aware of the need to negotiate with parties in 
control on the ground and realize the dangers in such negotiations. They are 
used to debates about their "neutrality" and of the need to be, and to appear to 
be, impartial. 

Other NGOs operate in a different way. Some are not NGOs in the 
traditional sense. Groups of individuals, troubled by a particular conflict, might 
put together a truck load oi the relief they assume to be necessary. They may 
even manage to send a small convoy of trucks to the conflict zone, with a view 
to distributing the relief. Such individuals have enthusiasm and commitment 
but a total lack of experience. 15 They have no knowledge of what is needed 
where. They have no experience of negotiating relief through zones of conflict. 
They may fail to recognize signals of personal danger. A problem arises when, 
unwittingly, their activities prejudice better organized and more significant (in 
terms of volume) relief efforts. The individuals involved should be encouraged 

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to put their efforts into fund-raising for experienced relief NGOs. The difficulty 
is that established NGOs can hardly make such an argument; it appears to be 
born of rivalry or a fear of competition. Others must assume the responsibility 
for making the argument. 

If the group just discussed may be seen as exasperatingly naive amateurs, a 
much more serious problem is caused by relief "cowboys." Certain NGOs want 
to be seen as getting through to the places others cannot reach, whatever the 
price. The price paid, in terms, for example, of diverted relief supplies, will not 
be seen on television screens, but their presence will be. They are very 
dependent on donor support and therefore need to have a high profile presence 
in the areas of acute need, where the television cameras are most likely to be. 
Not only do such groups cause problems in theater, where the conflicting 
parties may assume that they can exact the same price from all relief agencies or 
that all such NGOs will behave in the same way, but more traditional relief 
NGOs may find themselves in competition with them for donor support. If the 
latter are seen to be doing something, they may attract greater financial support 
from individuals than more responsible, lower profile NGOs. This, in turn, may 
affect the conduct of the well-established NGOs. In order to maintain donor 
support, they may be tempted to ignore certain well-established principles of 
their modus operandi. 16 There is little that can be done to regulate the 
"cowboys." The well-established relief NGOs can, however, reinforce their own 
adherence to certain principles. They can agree with one another to make joint 
appeals in emergency situations and to distribute the resultant "kitty" 
according to an agreed formula. 17 This avoids competitive fund-raising. Under 
the leadership of the International Committee of the Red Cross (ICRC), a code 
of principles has been agreed upon for the delivery of humanitarian 
assistance. 18 It is to be hoped that governments, which are often, directly or 
indirectly, very significant donors to relief operations, will make their funding 
conditional upon adherence to these principles. 19 

Medical NGOs. Development and relief NGOs may, of course, work in the 
medical field. In addition, however, there are dedicated medical NGOs which 
offer medical treatment in situations of conflict. What might be termed 
"medical/development assistance" includes group specific activity, such as that 
related to the promotion of women's health, 20 and action related to a specific 
medical field. 21 The work may be part of a larger development program or may 
be the only activity of the organization. Certain medical concerns, notably 
female reproductive health, need to be handled with even greater cultural 
sensitivity than general development issues. Where the medical activity 

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involves dealings with patients and is handled by medical personnel, issues of 
medical ethics may arise, particularly with regard to confidentiality. 22 

The provision of medical services in situations of conflict is particularly the 
province of the 1CRC and Medecins sans Frontieres (MSF). This is what 
distinguishes such organizations from relief agencies that include medical 
goods in their consignments. The ICRC and MSF send medical teams into the 
field, including specialists in war surgery. 23 The two organizations are keenly 
aware of what distinguishes them from one another. 24 From the outside, it is 
clear that they have very different ground rules with regard to where they will 
go and under what conditions. When it comes to the treatment of patients, 
both sets o{ medical personnel are bound by and apply the rules of medical 
ethics. 25 They are marked out from other relief organizations not only on 
account of their adherence to a particular code of ethics; situations in which 
they have to work often require them to apply the principle of "triage" in 
assigning priority of treatment. In this, they have much in common with the 
medical services of armed forces. 26 They are not, however, subject to the 
constraints o( a military hierarchy or military discipline. 

Movement NGOs. There are many NGOs working with refugees and asylum 
seekers, but this tends to be in the country of refuge, rather than in the place 
from which they are fleeing. Development and relief NGOs may work with 
refugees and internally displaced persons (IDPs), but they do not generally 
focus on the cause of displacement; rather, these NGOs deal with current 
needs. Human rights NGOs may address the causes of refugee displacement, 
but in the context of human rights violations rather than the resultant 
displacement. UNHCR is, of course, an agency concerned with the causes and 
effects of displacement. If there are NGOs that focus specifically on 
displacement (such as I.O.M.), they are not as well known as the most 
prominent development, relief, medical or human rights NGOs. 

Human Rights NGOs. The majority, and certainly the best known, of the 
human rights NGOs work principally in the field of civil and political rights. 
There are, nevertheless, certain NGOs that work outside the area of conflict on 
what might be seen as survival rights or economic and social rights, such as 
those to food and shelter. 27 In addition, certain development NGOs articulate 
at least some o( their activities in human rights language. 28 What the human 
rights NGOs have in common is that they do not deliver assistance or services 
in the field in the same way as the organizations so far discussed. This does not 

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mean that they do not have a field presence; their function is, however, very 
different. 

Insofar as human rights violations are a significant cause, or symptom, of 
impending conflict, timely and effective response to the concerns articulated in 
the reports of NGOs would represent a form of conflict prevention. Yet it 
happens all too rarely. 

The principal tool of human rights NGOs is the report. Such reports aim to 
attract publicity in order to secure the "mobilization of shame." Human rights 
NGOs vary significantly in the use they make of their reports for lobbying. Many 
are not membership organizations, although they may have subscribers. Amnesty 
International is unusual in being not only a membership organization but one 
which relies heavily on the campaigning activities of members. This includes 
putting pressure not only on their own governments with regard to the situation 
in another country but also on the offending government by letter writing to a 
wide range of public officials. Many of the human rights NGOs make effective use 
of the UN human rights machinery by, for example, submitting information to 
UN thematic and Special Rapporteurs and to the Human Rights Committee 
established under the International Covenant on Civil and Political Rights. 

The human rights NGOs once showed a certain initial reluctance to get 
involved in legal questions arising out of the conduct of hostilities. They often 
found themselves reporting on violations of human rights that occurred in 
situations of non-international conflict, particularly in central America, but 
tended to concentrate on the impact on civilians. Since human rights law 
directly binds only State authorities, they tended to focus on human rights 
violations carried out by police and armed forces. 30 This exposed them to the 
charge of one-sidedness, since they did not address "violations" by 
non-governmental entities. 

The pattern with regard to human rights reporting, however, has changed 
markedly over the past decade. Human Rights Watch led the way in analyzing 
situations and particular actions from the standpoint of humanitarian law as 
well as human rights law. This enabled them to examine the conduct of 
military operations. 31 Amnesty International has, more cautiously, begun to 
follow suit. 32 This is partly the product of a change in the pattern of human 
rights violations. While individual cases of arbitrary detention, torture, and 
unfair trials continue to exist, situations of gross and systematic violations of 
human rights have acquired greater prominence through conflicts such as 
those in Somalia, the former Yugoslavia, and Rwanda. 

The human rights NGOs also now seek to address "violations" perpetrated 
by non-governmental entities. The language used and the campaigning tools 



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NGOs in Situations of Conflict 



are different, but these base themselves on the same standards as those 
applicable to States. 

Human rights NGOs need reliable sources of detailed information. One of 
the obvious potential sources in situations of conflict is the personnel attached 
to development, relief, and medical NGOs. This has given rise to real dilemmas 
for the latter, who fear that their neutrality and impartiality may be called into 
question if they provide information on violations of human rights or 
humanitarian law, however objective and impartial the reporting. This may 
prejudice their ability to continue providing relief to those in need. (This 
problem will be considered further below.) 

It has been seen that a wide variety of NGO actors may be found in situations 
of conflict, with very different functions and views as to the principles 
applicable to their activities. A further, extremely significant, variable is the 
type of situation in which they find themselves operating. 

The Diversity of Situations 

Before the Fighting, Many, but not all, recent conflicts have arisen in States 
receiving some form of development assistance. In some cases, the assistance 
has taken a traditional form, that is to say, the development of infrastructures 
to meet the basic needs of the population. In more recent years, direct or 
indirect government-funded assistance has sometimes come with strings 
attached. (Conditionality will be examined further below.) In the case of 
Eastern Europe and the former Soviet Union, assistance has taken the form of 
help in adjustment, rather than development. What has been sought, notably 
by the Organization for Security and Cooperation in Europe (OSCE), has been 
the promotion of the institutions and mechanisms of civil society. 

In many cases, conflict is the direct or indirect result of weak State 
structures. 33 Where chronic instability has prevented effective nation-building, 
governmental structures are weak, and the outbreak or intensification of 
fighting presents a challenge that overwhelms them. In other cases, the 
precipitating element may be the aftershocks brought about by the implosion of 
the former Soviet Union. Where the conflict is a reaction to an autocratic 
regime, it may be the indirect result of weak State structures, however 
paradoxical that may appear. Nervous governments faced with challenges to 
their authority do not have the confidence to allow space for dissent or to 
negotiate the challenge; instead, they respond with oppression, thereby 
contributing to that which they most fear. 

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The development NGOs are not well placed to address these concerns, 
beyond attempting to meet survival needs and, through cooperation with 
government agencies, seeking to instill good practice. They are, however, well 
placed to observe and to send warnings to the international community. 
Development agencies sent the clearest possible signals about the deteriorating 
situation in Somalia, but to no avail. 34 From outside the countries involved, 
human rights NGOs may send similar warnings. That happened most notably in 
the case of Rwanda. 

During the Fighting, The fighting may make it impossible to continue with 
development assistance, either on account of the hostilities or of the resultant 
dislocation, such as the displacement of the population. There will suddenly be 
a change in the political and legal context, and a plethora of new players in the 
field. It is all too easy, in an academic or bureaucratic ivory tower, to forget the 
chaos engendered by an ever-changing political and military situation, about 
which there is usually inadequate and/or outdated information, and by the 
constant need to achieve new means o{ cooperation with ever-changing 
organizations. It is little wonder if NGOs simply react to events. 

NGOs with the most experience in conflict situations are likely to be those 
which have developed modi operandi to cope with predictable chaos. The 
difficulty, however, is that while chaos is predictable, its particular form is not. 
Emergency relief NGOs will not have the experience of the particular society 
and culture that development NGOs will have gained. 

The apparently rigid principles o{ the ICRC may give the impression that 
they can cope with high levels of chaos and rapid change. 35 They simply follow 
their tried and tested principles. The danger, however, is that the principles 
become a straitjacket that prevent the ICRC from adapting to changing 
circumstances. 36 At least as great a problem is presented by NGOs that have not 
thought through in sufficient detail their principles of action and cooperation. 
They may be tossed around by circumstances, consoling themselves with their 
bottom line: "do no harm." 37 

It would be presumptuous to propose solutions either to the ICRC or to less 
experienced NGOs. They can only be urged to take the time to debrief their 
personnel and attempt to identify, and then learn, the lessons to be learned. 
Even as they do so, they should avoid reassuring but illusory certainties; just as 
every NGO is different, so is every conflict. 

The same problems will also beset any UN or UN -authorized forces in the 
field. They need to avoid the dangerous tendency of lumping all NGOs 
together. This might best be avoided if they got to know them individually. It is 

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too late when they meet one another in theater. Getting to know and 
understand the NGOs (and vice versa) needs to happen before deployment, 
ideally through joint training exercises. 38 This will not remove all causes of 
conflict, but it may remove some and enable them to predict others. The same 
is true of the relationships between NGOs. 39 One of the lessons of recent 
peacekeeping and peace-enforcement operations is that all parties in theater 
need not only to know their enemies, but also their friends. 

Towards the End of the Fighting. The fighting may come to a halt owing to 
war-weariness, temporary or longer-term, or as a result of some form of 
cease-fire, however fragile. There will inevitably be a need for assistance in 
reconstruction. Even if there are still legacies of the fighting to be dealt with, 
such as the disarming of fighters and the (re) creation of an effective and 
accountable police force, 40 the language of discourse will shift from 
humanitarian law to human rights law, from relief to development. Since the 
foundations for the post-conflict future will have been laid during the conflict, 
it is as important that those laying the foundations understand what will come 
next as it is that those involved in reconstruction understand the foundations 
on which they are building. Human rights language is not the same as 
humanitarian law language, even though both are premised on the inherent 
dignity of the individual and the protection of the vulnerable. The two types of 
analysis complement one another. 41 All the players, before, during and after 
the conflict, need to be familiar with both. 

The problems with which NGOs, and governments as major funders of their 
operations, will have to grapple vary depending on the NGO and the situation. 
Nevertheless, certain common themes do arise. 

Humanitarian Assistance 

In the constantly changing reality of the situation on the ground in Somalia, 
the former Yugoslavia, Liberia, and Rwanda, any number of elements may 
appear to have contributed to the result. That result may be a starving 
populace, deprived of humanitarian assistance, or the massacre of refugees, or 
the slaughter of innocents in UN-proclaimed "safe areas." It may be difficult to 
distinguish secondary elements from the irreducible kernel of hard choices. 
That effort must be made by NGOs, IGOs, and governments working together if 
the dead of this decade are not to have died in vain. 

All the conflicts have been marked, to a greater or lesser degree, by the 
difficulty both NGOs and IGOs experienced in getting humanitarian assistance 

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Frangoise Hampson 



to those who needed it. It is not surprising that the attention of NGOs has 
turned to better coordination of relief efforts and to what must appear to be 
deficiencies in the legal rules applicable. There is always a need to improve 
coordination, but that is hardly an answer to denial of access to populations in 
need. 42 Similarly, any examination of the legal rules applicable, whether in 
international or non-international conflicts, suggests that the problem does 
not lie there, although the failure to respect the rules is a problem. 

In an international conflict, starvation of civilians as a method of warfare is 
prohibited. 43 That does not extend to situations where starvation is the 
foreseeable result but not itself the tactic. Relief operations that are 
humanitarian and impartial in character should be undertaken, subject to the 
agreement of the Parties concerned. 44 The Parties are required to allow and 
facilitate rapid and unimpeded passage of relief, even if it is destined for the 
civilian population of the adverse Party. 45 The Parties have the right to 
prescribe the technical arrangements, which include, but are not confined to, 
the right to search relief convoys to confirm that they do not include military 
equipment. 46 Relief personnel are to be protected, but their participation is 
subject to the approval of the Party in whose territory they will carry out their 
duties. 47 While the language of the provision on humanitarian assistance is 
mandatory, the requirement of consent is susceptible to abuse. 

In non-international conflicts to which Protocol II of 1977 is applicable, 
relief actions of an exclusively humanitarian character should be undertaken, 
but subject to the consent of the High Contracting Party concerned. 48 The 
Protocol does not require the consent of the non-State forces because that 
might appear to grant a certain status to the "rebels" and would be seen as 
interference in the internal affairs of the State concerned. Starvation of 
civilians as a method of combat is again prohibited. 49 

In non-international conflicts to which only common Article 3 o{ the 
Geneva Conventions of 1949 is applicable, there is no provision on the delivery 
of humanitarian assistance. An impartial humanitarian body may, however, 
offer its services to the Parties to the conflict, and that offer cannot be claimed 
to constitute an interference in the internal affairs of the State. 50 

No doubt there are gaps, and the law could probably be improved, but that is 
to miss the point. If the forces in control on the ground will not grant access to 
populations in need, then either the assistance convoys run the real risk of 
attack or they must be equipped to protect themselves. The consent of those in 
de facto control is a practical prerequisite to the unarmed delivery of assistance. 

Nor is the explanation plausible that the Parties are simply ignorant of the 
rules, that if only they knew them, then they would allow access to the 



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NGOs in Situations of Conflict 



populations in need. 51 The reasons for the denial of access may vary, but 
improved dissemination of the rules is likely to have only a very limited effect. 

The problem concerns not only access to populations in need, but also the 
lack of security of those people, whether they be in Sarajevo, in refugee camps, 
or in "safe areas." 52 A BBC radio news bulletin carried an interview with an 
inhabitant of Sarajevo during the siege of the city. He commented that the 
international community seemed not to mind that he would die one day from a 
sniper's bullet, provided he was not hungry at the time. Humanitarian 
assistance was a substitute for an overall policy. 

The NGOs have recognized the linkage between the delivery of 
humanitarian assistance and the protection of the civilian population. 53 It is far 
from clear, however, that they have recognized that this may mean hard 
choices. Governments may be less inclined to assist in the delivery of 
humanitarian assistance if the price is high. 54 For some NGOs, to save one life is 
to save a universe. They would prefer not to have 90 percent of the aid diverted 
to people in less need of it. They would prefer not to have to turn a blind eye to 
the massacre of civilians. They are not prepared, however, to see one person 
starve if that can be prevented. 

NGOs are born of idealism and commitment to those in need. It is not 
surprising that they should find it difficult to accept that the price of delivery of 
assistance may be too high. One must also be cautious about the greater 
willingness of governments, principal donors to NGOs, to contemplate such a 
possibility, unless it forms part of a policy designed to promote the greater good 
of the population. Determining that the price to be paid for delivery of 
humanitarian assistance is too high cannot simply be allowed to be a means 
whereby governments get themselves "off the hook." 

Some NGOs see this attitude on the part of governments as an extension of 
"conditionality" in the development assistance field. It is submitted that while 
the two do have something in common, there is a difference in this context. 
There are two priorities in relation to the population in need. One is their physical 
security, the other the provision of humanitarian assistance. These priorities 
may, in a given situation, compete with one another. 

The protection of the civilian population may also raise the question of the 
role of armed forces. In certain circumstances it may be necessary to deploy 
armed forces that are appropriately configured and equipped, and that have the 
mandate and, above all, political will to protect the civilian population. The 
attempts to date by the international community, with the exception of the 
"safe haven" in Northern Iraq immediately after its designation, have been 

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Franqoise Hampson 



half-hearted and doomed to failure from the outset. 55 It may be that this is a job 
which should be done properly or not at all. 

NGOs cannot afford to lose their impartiality, but that still leaves them with 
hard choices. 56 There may be a split between those that come to accept 
restrictions on the delivery of humanitarian assistance in order better to 
protect the civilian population, and those that cannot accept such restrictions. 
If governments channel their funding to the former, the latter will be 
dependent upon the support of individual donors. There may also be a split, not 
necessarily along the same lines, between those prepared to work with UN or 
UN-authorized forces and those that reject such cooperation on the grounds 
that it prejudices their impartiality. By establishing clear doctrine for peace 
support operations, including the tactical level, armed forces could contribute 
significantly to reducing the perceived problem. 57 It probably cannot, however, 
be completely eliminated. While the question of the role of armed forces and 
the debate between humanitarian assistance and protection overlap, they also 
need to be considered separately. The latter presents a real challenge to NGOs, 
whether or not the military are present. 

Medical Assistance 

The essential dilemmas faced by those NGOs providing medical services are 
very similar to those in the field of humanitarian assistance generally, 
compounded by questions of medical ethics. Impartiality becomes 
individualized. The individual doctor is required to treat patients simply by 
reference to medical need. 58 This may be part of the explanation behind a 
distinction in the operating practice of the ICRC and MSF. For the ICRC, the 
provision of medical services is usually part of a larger operation. Its practice is 
to insist on working on both sides of a conflict in order to protect its own 
neutrality and impartiality. On the other hand, MSF, which similarly adheres to 
impartiality, sees no conflict between principle and only working on one side, 
or indeed in only one zone of one side, of the conflict. MSF medical personnel in 
the exercise of their functions are impartial. They will treat by reference to 
medical need alone, wherever they happen to be exercising those functions. 
MSF and the ICRC can work alongside one another, but MSF is also to be found 
where the ICRC does not or cannot go. 59 

The two organizations also take very different positions in relation to 
cooperation with human rights investigators and the two ad hoc war crimes 
tribunals. Again, in the case of the ICRC this may be partly attributable to the 
fact that it engages in a wider range of activity than the merely medical. There 

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NGOs in Situations of Conflict 



is clearly a possible question of the confidentiality of the doctor-patient 
relationship. 60 Giving information with consent, however, is clearly a different 
question, and the two organizations take very different positions on it. (That 
will be discussed further in the next section.) 

There is one particular medical issue that concerns not only these two 
organizations, but a wide range of other NGOs. It is best exemplified by the case 
of Irma Hadzimuratovic, a little girl who was seriously injured in Sarajevo in an 
incident in which her mother was killed. 61 She needed very swift medical 
intervention, which the medical personnel in Sarajevo were unable to provide 
because of their inadequate resources. Irma was eventually evacuated, thanks 
to the intervention of the British Prime Minister. It was, however, too late. Her 
injuries were by that time much harder to treat than they would have been, and 
she died some time later. 

This raises some problems similar to the humanitarian assistance/protection 
debate, compounded by the question of evacuation. Is the answer to improve 
the quantity of medical relief if you are simply patching someone up to be 
injured again later? Is it better to evacuate injured persons for medical 
treatment if they then have to be returned to a war zone, than to do your best in 
situl Should children be evacuated, but only with their parents? 62 

There were and are, in fact, criteria for determining questions of medical 
evacuation. 63 Irma was regarded as not coming within them. It might be useful 
if these were reexamined by, among others, the World Health Organization, 
the United Nations Children's Fund (UNICEF), medical and children's NGOs 
and as wide a range of interested parties as possible. There may be no need for 
change, but there does seem to be a need for at least a reconsideration of the 
issue. 

Neutrality, Impartiality and The Reporting of Violations of 
Humanitarian Law and Human Rights Law 

Reporting. Human rights NGOs carry out their function by gathering 
information, analyzing it in terms of the applicable legal norms, and then 
publishing the results. To effect change, they need publicity and campaigning. 
While they would deny that they are other than impartial, their activities may 
be seen to be, or be claimed to be, "political." Indigenous human rights NGOs, 
where they exist, may be particularly vulnerable to suppression. International 
human rights NGOs tend to work from outside the conflict zone, with only a 
very limited field presence. 

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Traditionally, relief agencies kept their distance from human rights NGOs, 
for a variety of reasons. 64 Particularly during the Cold War, human rights 
activities were seen as "political." The relief agencies were also worried about 
stepping outside their "mandate," and there was perhaps a concern about the 
NGO equivalent o( "mission creep." They also saw cooperation with human 
rights NGOs as calling into question their independence and impartiality. They 
were worried about the use that might be made of information supplied to 
another organization and about the protection of witnesses. They were also 
concerned that their own access to civilian populations would be jeopardized if 
they were known to be supplying information to other organizations. Last, but 
by no means least, they felt ignorant about human rights law, which seemed to 
them a very different type of activity. They did not know on what to report. 

There is no doubt that humanitarian agencies have a much larger field 
presence than human rights NGOs. They also encounter, on a day-to-day basis, 
the possible victims of violations o( human rights law and humanitarian law. 65 
Humanitarian NGOs are the passive recipients of information and, in other 
cases, are well placed to gather the relevant information more positively. 

The situation in Rwanda seems to have marked a turning point. Oxfam was 
the first agency to declare that what was happening was genocide, and it paid a 
price for doing so. The attitude of NGOs who were blind and/or silent about 
what was going on around them, provided they could deliver humanitarian 
assistance, was heavily criticized in a paper by African Rights. 66 

Rwanda precipitated a period of soul searching on the part of relief NGOs. 
The first sign o{ a breakthrough was when a significant number of them 
recognized that evaluating actions in the context of human rights norms did 
not represent any loss of impartiality. That is to say that, while it may be done in 
a one-sided way, such reporting is not inherently partial or one-sided. The 
second breakthrough occurred when the relief agencies stopped to examine 
their oft-repeated mantra — "neutrality, impartiality, and independence." The 
ICRC principles dictate that its activities must be based on neutrality and 
impartiality. 67 Many relief NGOs became very suspicious of neutrality, seeing it 
as an excuse for remaining silent in the face of atrocities. If neutrality meant 
never taking sides, they wanted to take the side of upholding universal legal 
norms based on the rights of all individuals everywhere. They were on the side 
of victims o{ violations, whoever they were. In other words, they would be 
evenhanded in applying the same principles to everyone. This led them to 
proclaim their impartiality and independence, but not their neutrality. 68 

While this evolution facilitated improved cooperation between relief NGOs 
and human rights NGOs, it did not, and could not hope to, remove all the 

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problems. Some difficulties, such as the need to provide a minimum of human 
rights law training to relief personnel in the field, can be addressed over time. 
Others are more problematic. Whether being known to provide information to 
human rights NGOs will result in a relief agency being ordered out of the 
country or denied continued access to the population in need cannot be 
answered in the abstract. The experience in that regard is not all negative. 
Indeed, as noted at the Medecins sans Frontieres Conference in February 1996, 
"the real risks to our operations and our ethics lie in silence. And there are 
plenty of examples where human rights advocacy has in fact increased access to 
the victims and improved the safety of our staff, as was the case in Burundi." 69 
The protection of witnesses is also a very real problem, as the experience of 
those who have testified in Arusha, Tanzania, before the war crimes tribunal 
and then returned to Rwanda has shown. 

There may, nevertheless, be a shift in attitude. If the starting point of relief 
NGOs is that they will gather information, in some cases seek it, and then pass it 
on to responsible human rights NGOs (where they feel it to be safe to do so and 
where they have the requisite guarantees as to the use to which the information 
will be put), then the effectiveness of human rights reporting could be 
transformed. Even if the relief agencies were only able to indicate likely 
witnesses and sources of information, this would still be of considerable 
assistance. 

What is particularly striking is the leading role played by a medical NGO in 
promoting the cooperation between relief agencies and human rights NGOs. 
They might have been thought to have the biggest problem with the sharing of 
information. Nevertheless, MSF has taken the lead and may have encouraged 
other NGOs by its example. Of course, there is a separate question in relation to 
the sharing of information. It is one thing to cooperate behind the scenes with 
human rights NGOs. It is quite another thing to give evidence in criminal 
proceedings before an international criminal tribunal. 

Giving Evidence, While the ICRC's policy is never to cooperate in this way,' 1 
some intergovernmental agencies, such as UNHCR, have sought to strike a 
balance between protecting their clients' confidentiality and giving evidence. 
Other organizations and individuals, even within the same group, have taken 
differing positions/ 2 Again, MSF has been in the forefront of those promising 
the greatest possible cooperation with the tribunals. In relation to the giving oi 
evidence at the request of the prosecutor, the rules of evidence give NGOs a 
certain protection/ 3 It remains to be seen what will happen when the defense 
seeks to call an NGO employee as a witness and argues that the testimony is 

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Franqoise Hampson 



vital for a fair disposal of the case. If the judges agree and subpoena the 
individual in question, a refusal to appear may result in contempt proceedings, 
even, it would appear, in absentia. 7 * It is to be hoped that the judges will 
recognize that in some cases there may be legitimate grounds for the refusal to 
answer a question. That will be, and should be, determined by the judge and 
not the NGO employee. 

Advocacy and Campaigning, The twin issues of advocacy and campaigning 
raise many of the same issues for NGOs as the reporting of violations of human 
rights and humanitarian law. In some cases, the law on charities imposes 
restrictions. 75 Some organizations have, nevertheless, become frustrated by 
only treating symptoms and have begun to campaign about the causes of the 
problems which they are there to address. Oxfam and Christian Aid, for 
example, have campaigned regarding the causes oi poverty and the cycles of 
emergencies. Handicap International, a French-based NGO that provides 
prostheses, became concerned about the extent of the need for artificial limbs 
on account of injuries from anti-personnel land mines (APMs) and put pressure 
on the French government to call for a conference to review the 1980 
Conventional Weapons Convention. 76 This resulted in the revision of Protocol 
II of that Convention relating to the use of land mines. 77 While the revised text 
marked a considerable achievement, most notably by extending its application 
to non-international conflicts, it fell far short of what NGOs perceived to be the 
need — an outright ban on the use of APMs. (The Review Conference also 
adopted a new fourth Protocol on blinding laser weapons.) 78 Subsequently, a 
group of States, led by Canada, decided to negotiate a treaty banning the use of 
APMs, which was signed in Ottawa by 120 States in December 1997. 79 

The campaign to ban the use, manufacture, and stockpiling o{ anti- 
personnel land mines has been a quite remarkable achievement for NGOs. 
Even five years ago, it was unthinkable that such a treaty ban could be 
achieved. One may question the impact that the Ottawa treaty banning the 
use oi APMs will have, since the most important users and manufacturers of 
APMs are not Parties to it, but this does not detract from the achievement of 
the NGOs. 80 

This was not the work of one NGO or even of a linked group, such as medical 
NGOs. 81 It represented a remarkable feat of organization to create a small 
international committee, with a coordinating function, and national 
organizations, consisting of a loose coalition of NGOs. The arrangements had 
to be both loose and flexible, to cope with the variety of mandates, objectives, 
and campaigning methods of the different types of organizations involved. 

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Participating groups included children's organizations, development NGOs, 
refugee groups, relief organizations, human rights NGOs, and arms trade 
groups. All these groups were able to find something which they were able to 
contribute to the campaign. 

The important question for the future is whether this is a precedent or a 
"one-off phenomenon. Certain features of the APM issue made it an ideal 
subject for a campaign. The scale of the problem was, and is, enormous. The 
principal casualties are civilian. It was relatively easy to understand the 
technology. The message was simple: what was sought was an outright ban on 
use, in which case a ban on manufacture and stockpiling was logical. The 
nature of the injuries and of the victims made a significant visual impact. One 
only has to consider the campaign on laser weapons designed to blind, which 
was running at the same time as the land mine campaign, to see how 
significant such features are. There were essentially only two organizations 
campaigning about laser weapons, the ICRC and the Arms Project of Human 
Rights Watch. 82 Those lobbying understood the technology and the issues, 
but there was never the mobilization of public opinion that occurred in 
relation to APMs. 

The key question then becomes whether there are other weapons that might 
provoke the same reaction in the public as land mines. Concern has been 
expressed about the use of small caliber ammunition and cluster weapons, but 
it seems questionable whether they would lead to a mass campaign. 83 It is more 
likely to be the specialist NGOs that become involved. If a conflict were to 
occur with a widespread use of incendiary weapons, that issue might become 
the focus for a campaign but there is no sign of that at present. There may now 
be a generally higher level of awareness and concern about the environmental 
impact o( spent munitions and the insecurity which both causes, and is the 
product of, high levels of expenditure on conventional weapons, but it seems 
unlikely that that awareness will become sufficiently focused to produce a 
campaign as effective as that to ban land mines. 

At present, it would seem that the land mine campaign is likely to be unique, 
at least in its scale of public mobilization and the range of participating NGOs. 
Nevertheless, there are NGOs well placed to campaign about the use of other 
weapons, and a precedent now exists for a wide range of NGOs to work 
together. The first group will continue to be involved in campaigns about 
specific weapons. It is not possible to predict whether one of those weapons will 
seize the imagination of the public. It takes an unusual combination of factors 
to do so. 

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The Accountablity of NGOs 

Accountability is not, in this context, confined to legal accountability, 
although it goes without saying that NGOs are subject to the laws of the places 
in which they work. It includes moral responsibility, particularly where third 
parties treat NGOs as having some such responsibility for their actions. It also 
includes accountability in the sense of cause and effect. Where a person or 
body responds to the activities of an NGO in a way that affects the ability of the 
NGO to continue with those activities, this might be seen as de facto or effective 
accountability, irrespective of whether it is "justified" or even reasonable. The 
NGO has to take into account the possibility of such a reaction when 
determining its course of action. 

In a more restricted sense, accountability usually involves the attainment of 
goals. A person or body evaluates the performance of the NGO by reference to 
objective criteria. This requires both measurable goals and objective criteria of 
evaluation. When the beneficiaries of action are people, there are the usual 
difficulties in determining whether there should be a qualitative, and not 
merely quantitative, evaluation and, if so, how to set about it. Is it necessarily 
the case that NGO One is "better" because it delivers 1,200 tons of relief in the 
same time and/or for the same cost that NGO Two delivers a thousand tons? Is 
it necessary to consider the accountability of NGOs to recipients/beneficiaries 
and also to donors, both individuals and States? Consideration also needs to be 
given to the relationship between accountability and the role of the media. 

Accountability to Recipients/Beneficiaries, Development NGOs have had, for 
quite some time, a sense of responsibility toward the people whom they are 
trying to help. 84 There has been a shift over the past forty or so years from the 
sense that the recipients are the beneficiaries of charity to a perception that the 
NGOs are working in collaboration with the local community. This has been 
articulated through such concepts as empowerment and participation, and has 
led to greater reflection about the impact of assistance within the community. 
These ideas began naturally to "leak" from development to relief operations. 

There is a different paradigm in the case of activities relating to violations of 
human rights or humanitarian law. Human rights NGOs and the ICRC have 
been acutely aware of the potential risk to individuals, rather than the 
community, in publicizing names. It may be, but this is speculation, that the 
preoccupation of development/relief NGOs with communities rather than 
individuals contributed to their silence in the face of human rights violations. 
The recent recognition by relief NGOs that assistance cannot be divorced from 

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NGOs in Situations of Conflict 



protection suggests that their position is evolving. It may be that their focus on 
communities means that they will only become engaged in protection activities 
where the violations are widespread and systematic. Provided they recognize 
that unpunished individual violations may become a practice, it may be 
necessary, in order to achieve a sensible distribution of roles, for relief NGOs to 
become involved in action only in the case of widespread violations. Human 
rights NGOs are probably better suited to dealing with individual cases. In that 
situation, relief agencies could help by passing on information. 

It may be significant that MSF, a medical organization, is at the forefront of 
moves to get relief NGOs to consider the issue of protection. While medical 
activities might seem to be a type o{ relief action, they do involve the 
relationship between an individual patient and medical personnel. In other 
words, medical NGOs do not function only at the community level. 

Ultimately, it does seem that all NGOs have a sense of responsibility toward 
recipients/beneficiaries. However, the form it takes differs, depending on the 
type of activity involved. 

Accountability to Donors. It is necessary to draw a distinction between 
accountability to individual donors and to State or organizational donors, not 
least because the two constituencies may impose competing, if not conflicting, 
demands. In addition, organizations and States are more likely to require 
accountability in the most literal sense. The administration and control 
involved may deter some NGOs from even seeking such funding. Two different 
ideas may become confused in the minds of NGOs. One is accountability, 
which is some type of obligation to another person or body. The other is the 
desire of NGOs to carry out their activities in as many of the places where they 
are needed as possible. This requires money. It would be understandable if they 
sought to tailor their activities to what is most likely to appeal to their donor 
constituencies. This is not the same thing as an obligation of accountability to 
donors, even if it is articulated in those terms. 

Individual donations may be closely linked to media coverage of the 
epicenter of a crisis. In that case, the NGO has to be seen to be there. On the 
other hand, State or organizational funding may have strings attached, either 
conditionality or something that looks like it. The NGO then has to determine 
whether it is simply interested in raising as much money as possible, or whether 
it has a view as to the maximum possible funding from one particular source 
which is consistent with its independence. For some this may mean a refusal to 
accept any governmental funding. That is more likely to be the case for human 
rights NGOs than for relief/development NGOs. 

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Franqoise Hampson 



The need to maintain donor support and/or accountability to donors may 
have a direct impact on the activities undertaken. In particular, it may prompt 
an NGO to be involved in a highly visible relief program, irrespective of the 
price paid in terms of the diversion of relief or silence in the face of serious 
violations of the law. 

Accountability and the Media, To consider generally the role of the media in 
conflict situations is beyond the scope of this paper. 85 Some commentators 
appear to assume that there is a "CNN factor," while others dispute that it has 
the significance often ascribed to it. 86 Some journalists think their role is to be 
objective and detached, whereas others aspire to what Martin Bell has 
described as "the journalism of attachment." That does not mean biased 
reporting: it means identifying with and conveying the plight of victims and 
daring to express anger and outrage. 

As seen above, donor support may be affected by the coverage oi an NGO's 
activities. That may, in turn, put pressure on the NGO to be not where there is 
most need or the greatest possibility of effective action, but where the cameras 
are. In some cases, NGOs can determine where the cameras go. The NGOs may 
be a principal source of information for the news media and also a source of 
relatively secure transport. 

NGOs are generally aware of their need for media coverage and, over the 
years, have spent effort and resources in developing professional media 
strategies. It is less clear whether they are aware of possible dangers in their 
ambiguous two-way relationship with the media. In seeking to use the media to 
their own advantage, they may also be, deliberately or inadvertently, 
manipulated. It may be necessary to distinguish between the print media and 
television. When reference is made to the "CNN factor," it is only the latter 
which is being considered. 

The question in this context is the extent to which NGOs are accountable 
for, first, the impact of media coverage where they make the coverage possible 
or are the subject of the coverage and, second, the effect of that coverage on 
their own operations. At the very least, this is a question that responsible NGOs 
should be asking themselves. 

The Future 

Speculation is an inherently hazardous activity. It is not possible simply to 
examine where NGOs are now and to project that forward. There are many 
other variables, all of which will interact with one another, and which need to 

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NGOs in Situations of Conflict 



be taken into account. First, there are possible changes in the causes and forms 
of conflict. Second, there is uncertainty as to the likely international response. 
The international community may decide that acute crises are too difficult to 
handle and must simply be contained until they burn out, or else it may 
discover the will to seek real solutions. Third, IGOs may adjust their priorities 
and modi operandi in various ways. 

It is possible, on the basis of recent experience, to draw up a nightmare 
scenario. In it, parties to a conflict seek an unlawful goal and consequently 
engage in systematic violations of humanitarian law. The only concern of 
NGOs is to ensure that people are fed. They turn a blind eye to the fact that 
many victims will be dead in a few hours or a few days. Armed forces external to 
the parties to the conflict are helpless, either owing to inadequate numbers and 
equipment and an inappropriate mandate or else a fear of casualties, which 
means that they only move in such large numbers as to be incapable of 
influencing the situation on the ground. States, in the meantime, use assistance 
as a substitute for policy and as an excuse for closing frontiers to prevent mass 
movement of people. Some of these elements have been present in many 
recent conflict situations. If they are not to recur, lessons must be learned. 

There is evidence that at least some NGOs are biting the very painful bullet. 
They have at least recognized that assistance needs to take account of the need 
for protection. There is not much value in "better fed than dead" if the 
recipients are going to be killed later. Some NGOs know they have to strike a 
difficult balance; discovering appropriate ways of doing so will not be easy. The 
ICRC, in some ways, exemplifies the dilemma. It has a wealth of experience and 
is used to relying on its demonstrable neutrality and impartiality. At the same 
time, this "guardian of humanitarian law" refuses to allow its delegates to give 
evidence before war crimes tribunals. There will be a certain degree of trial and 
error as NGOs seek a way forward, and no two situations are the same. Some of 
the NGOs are, nevertheless, looking for practical solutions. 87 It seems likely 
that there will be a split in the NGO community. Some will insist on delivering 
assistance, whatever the price. This group will include not only "cowboys," but 
those who see themselves as idealists. Others will, with reluctance, see how the 
wind is blowing, in particular with respect to State and organizational donors, 
and go along with it. Still others will be convinced of the need for adjustment, 
seeing it as providing more net help. 

In this situation, it is not the responsibility of only the NGOs to adapt and 
change. States, particularly members of the Security Council, have a huge 
responsibility. They have so far proved incapable of responding to an 
impending crisis, even where the NGOs and the UN machinery have made it 



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Franqoise Hampson 



clear what is at stake. Nor have States so far shown a willingness to bite their 
respective bullets. It is possible that the greatest single contribution that could 
be made to protecting victims from atrocities would be by breaking the cycle of 
impunity everywhere. The law of armed conflict is a useful tool because it is 
based on the equality of belligerents (in other words is impartial) and is based 
on individual criminal responsibility. To break the cycle of impunity requires 
an effective international criminal court with an independent prosecutor. 
States have to be willing to surrender their own soldiers to its jurisdiction. If 
they create a tribunal with fairness and integrity, and if they train their soldiers 
not to break the rules, they have nothing to fear from such a court. There is a 
great deal to gain. 

If those resorting to force know that they are likely to be tried if they 
prosecute the conflict in unlawful ways, but will not be subject to the 
jurisdiction of the court if they only target combatants and military objectives, 
this might have a significant effect on their conduct. Not only would it 
facilitate the task of NGOs in negotiating access for humanitarian assistance, 
but the fighters would implicitly be recognizing the legitimacy of NGO 
involvement in the promotion of the rule of law by providing protection. If the 
belligerents recognize that there are unlawful ways of fighting, it cannot be a 
sign of bias or lack of neutrality to seek to uphold the law. 

Only States, acting diplomatically and where necessary through their armed 
forces, can break the cycle of impunity. Only States can set effective controls 
on the transfer of weapons. Only States can wield the sticks and carrots 
appropriate to a particular situation. There is no shortage of rhetoric and hand 
wringing. There is, to date, a lack of effective action. 

The NGOs, armed forces, and donor States are going to have to surrender 
long-cherished ideas if they are to reach an accommodation. They have 
learned that they cannot simply insist on doing things in their own way, 
without regard to others. They will have to recognize and adjust to the 
priorities and needs of the other players. This does not mean that they have to 
adopt them. The first step would be if they all spoke the same language. If they 
used humanitarian law, human rights law, and refugee law as tools, they might 
not say the same thing, but they would at least begin to understand one 
another. 

This is beginning to happen between armed forces and at least some NGOs, 
and is most likely between those who have shared the experience on the 
ground. Donor States are reexamining questions of humanitarian assistance, 
but there is less evidence that they are assuming their particular responsibilities 
in relation to conflict prevention and breaking the cycle of impunity. 

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NGOs in Situations of Conflict 



NGOs, armed forces, and donor States have recognized that they have the 
same ultimate goal — the effective assistance and protection of victims. They 
have also recognized that they need to search for ways forward, both separately 
and together. There is still a long way to go before they convert these ideas into 
practical solutions to the problems faced on the ground. 



Notes 



1. Medecins sans Frontieres (MSF) Holland, for example, organized a conference in 
Amsterdam on February 9, 1996. Conference on the Co-operation between Humanitarian 
Organisations and Human Rights Organisations. See also Symposium on Humanitarian Action 
and Peace-keeping Operations, Geneva, June 22-24, 1994, ICRC (Palwankar ed.); von Fltie, 
International Humanitarian Law and Protection, Report of the Workshop, Nov. 18-20, 1996, 
ICRC. The Asser Instituut in the Netherlands has organized seminars on UN law, human rights, 
and humanitarian law for Dutch NGO personnel. It is worthy of note that the NGO search for 
solutions to practical problems has involved training in the applicable legal norms. This suggests 
a useful role for the law not only in denning acceptable and unacceptable forms of conduct, but 
also as a common language of discourse through which actual experience can be articulated. 

2. By "peacekeeping" is meant an operation based on the consent of the parties at every 
level, operational and tactical, in which the forces act impartially and can only use force in 
self-defense. By "peace enforcement" is meant an operation in which force can be used to 
achieve the mandated objective, not denned in terms of one of the parties. Force is to be used 
impartially or evenhandedly. There is no need for consent to the presence of the force at every 
level, though there will generally be some form of strategic political consent, probably 
halfhearted. See generally Hampson, States' Military Operations Authorized by the United Nations 
and International Humanitarian Law, in THE UNITED NATIONS AND INTERNATIONAL 

Humanitarian Law, 371-426 (Condorelli ed., 1996). 

3. E.g., UNHCR during the United Nations Provisional Force (UNPROFOR) operation in 
Bosnia-Herzegovina. 

4. E.g., the issue of military escorts for the delivery of humanitarian assistance. See infra. 

5. The role of the church and church agencies is not included, as such, within the scope of 
the text. Where a "religious" organization (e.g., Christian Aid) is involved in development or 
relief, it is considered along with other similar agencies. The specific role of the church is not, 
however, considered. It should be noted that the form of organization of the church, notably the 
existence of educated parish priests throughout a territory, represents a potentially invaluable 
source of detailed information, particularly in the human rights field. Individual priests and 
ministers, and the church itself, may play a more sinister role, as is alleged to have happened in 
Rwanda. See AFRICAN RIGHTS, RWANDA: DEATH, DESPAIR AND DEFIANCE (1994); AFRICAN 

Rights, Witness to Genocide, No. 1, (Oct. 1995). 

6. In particular, it is not uncommon for development agencies to remain in theater, 
adapting their projects to meet the needs of emergency relief, but in the context of their 
longer-term development goals. 

7. E.g., Save the Children Fund (SCF) in Somalia. 

8. Some NGOs have specific projects which focus on women's needs in the context of a 
broader overall project, e.g., Ethiopia's Addis Ababa Fistula Hospital project. Other NGOs 
concern themselves with the role of women in particular societies, notably with regard to health 

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Frangoise Hampson 



issues and some agricultural concerns. The formal or informal education of women assumes a 
particular importance. Even those NGOs which are specifically trying to assist children, such as 
SCF, often do so through their mothers. 

9. Wateraid seeks to assist in providing reliable access to safe drinking water. Intermediate 
Technology works with communities to develop an appropriate and locally sustainable 
technological solution to their problem. 

10. E.g., Oxfam, SCF, and other well established development NGOs. See generally 

Natsios, U.S. Foreign Policy and the Four Horsemen of The Apocalypse, ch. 4 
(1997). 

11. Certain development NGOs positively seek to work through such structures to 
encourage participation at all levels to avoid the risks of dependency and to promote 
sustainability. Even when political governmental structures have broken down, administrative 
structures may continue to function for a time (e.g., SCF's experience in Somalia). This gives 
development NGOs an advantage over incoming relief NGOs when the situation deteriorates 
into conflict. The former have already established contacts and have built up trust. See generally 

Edwards & Hulme, Non-governmental Organisations: Performance and 
Accountability, ch.l (SCF and Earthscan, 1995). 

12. This can be a problem in relation to the delivery of humanitarian assistance by relief 
agencies. See infra. 

13. Relief in the form of foodstuffs can have the effect of undermining such activity as there 
is in the agricultural sector. In some cases, the provision of seeds and tools might provide 
significant quantities of food while encouraging the maintenance of local economic activity. See 
generally MACALISTER-SMITH, INTERNATIONAL HUMANITARIAN ASSISTANCE: DISASTER 

Relief Actions in International Law and Organizations (1985); Macrae & Zwi, 
War and Hunger (1994). 

14. E.g., in some areas in Somalia. 

15. This was a particular problem in the case of the former Yugoslavia, probably owing to its 
proximity to and easy access from Western Europe. 

16. This was said to be a problem for certain NGOs in relation to relief activities in Rwanda 
and adjacent States. 

17. In the UK, seven big British aid agencies make up the Disasters Emergency Committee 
(DEC) to coordinate fund raising and avoid charges of poaching funds in each other's 
constituencies. In the early 1990s, the fight both to raise funds and to maintain a high profile 
with donors put the DEC under more strain than at any time in its nearly thirty year history. THE 

Independent, Dec. 21, 1994. 

18. Intl Rev. Red Cross, No. 310, 1996, at 73, 1 19-127. 

19. The significance of the role of governments as donors, directly or indirectly (as through 
European Union (EU) mechanisms) runs the risk of distorting the activities of NGOs and calling 
into question their independence. They need to maintain a balance between donor income, 
which ensures their ability to undertake independent action, and ear-marked governmental 
funding. The more they are dependent on governmental funding, the more they appear to be no 
more than subcontractors, and the more a government may be tempted to dictate terms. 

20. This often involves issues of reproductive health, such as female circumcision and 
contraception. 

21. E.g., Sightsavers which specifically assists in treating eye- conditions and in training local 
medical personnel to provide basic eye-care treatment. 

22. See generally TORELLI, LE MEDEC1N ET LES DROITS DE L'HOMME (1983). 



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NGOs in Situations of Conflict 



23. Since the ICRC surgeons have more experience in the field than most doctors with 
armed forces, the latter sometimes undertake placement in ICRC field hospitals in order to 
obtain the necessary experience. 

24- On MSF, see LAURENT, MEDECINS SANS FRONTIERES: LA OU LES AUTRES NE VONT 
PAS (1980) , more recently LIFE, DEATH AND AID Qean ed., 1993) , and the conference referred 
to in note 1. On the ICRC generally, see HAUG, HUMANITY FOR ALL (1993), especially ch. 3; 
BUGNION, LE COMITE INTERNATIONAL DE LA CROIX-ROUGE ET LA PROTECTION DES 
VlCTIMES DE GUERRE (1994). For the view of a very well informed "outsider," see FORSYTHE, 

Humanitarian Politics: The International Committee of the Red Cross (1977). 

25. On the contents of medical ethics in time of conflict, see TORELLI, supra note 22, and 
Hampson, Conscience in Conflict: the Doctor's Dilemma, 27 CAN. Y. B. INTL L. 203, 211-215 
(1989). 

26. For an excellent account of what "triage" actually involves in the context of operations 
conducted by medical personnel with armed forces, see McMANNERS, THE SCARS OF WAR, ch. 
10 (1993), especially pp. 262-3. For a recent example of the real dilemmas which confront 
medical personnel, see Incidents regarding the medical assistance provided to civilians by the Dutch 
Defence Hospital Organization (KHO) in former Yugoslavia, Report by the Inspectie voor de 
Gezondheidszorg, 1996, Rijswijk. Something analogous to the principle of "triage" might be of 
assistance to relief agencies. See infra. 

27. E.g., FIAN deals specifically with the right to food and the Centre on Housing Rights and 
Evictions (COHRE) with the right to housing. 

28. SCF (UK) is increasingly using the language of the UN Convention on the Rights of the 
Child. 

29. The thematic Rapporteurs include the Rapporteurs on Torture and on Extra-judicial, 
Summary and Arbitrary Executions. Special Rapporteurs are country specific. States which have 
ratified the International Covenant on Civil and Political Rights (ICCPR) have an obligation to 
submit periodic reports on implementation, on which they are questioned by the Human Rights 
Committee. It should be noted that nonderogable human rights, which include the prohibition 
of torture, cruel, inhuman, or degrading treatment or punishment and the prohibition of 
arbitrary killings, remain applicable in situations of conflict. The State is responsible under 
human rights law for the actions of its armed forces, even where they act extraterritorially. See 
generally, THE UNITED NATIONS AND HUMAN RIGHTS (Alston ed., 1992), and McGOLDRICK, 

The Human Rights Committee (1994). 

30. Rodley, Can Armed Opposition Groups Violate Human Rights, in HUMAN RIGHTS IN THE 

Twenty-First Century: A Global Challenge (Mahoney & Mahoney eds., 1993). 

31. This has even extended to full-scale international armed conflicts. See, e.g., MIDDLE 

East Watch, Needless Deaths in the Gulf War (1991) . The application of some of the 

legal rules to the particular facts in that report is, in some cases, controversial. 

32. E.g., Amnesty International, Israel/Lebanon, Unlawful Killings during Operation 
"Grapes of Wrath," in particular the analysis of the Israeli attack on the UN compound at Qana, 
on April 18, 1996. 

33. See generally the papers produced for a DFID/Human Rights Centre, University of Essex 
Conference on the Promotion and Protection of Human Rights in Acute Crisis, Feb. 11-13, 
1998. 

34. Minear, Scott & Weiss, The News Media, Civil War and Humanitarian 
Action 53-57 (1996); See also Sahnoun, Somalia— The Missed Opportunity (1994); 
African Rights, Somalia, Operation Restore Hope: A Preliminary Assessment 
(1992). 



258 



Franqoise Hampson 



35. ICRC sources, cited supra note 24. Plattner, ICRC Neutrality and Neutrality in 
Humanitarian Assistance, INTL REV. RED CROSS, No. 311, 1996, at 161-179. 

36. Following its recent experiences in Somalia, Rwanda, the former Yugoslavia, and 
Chechnya, among others, the ICRC has engaged in considerable soul searching regarding its 
modi operandi and in particular how to protect ICRC personnel from deliberate attack. This 
suggests that it is willing at least to contemplate changing its methods of operation should that 
prove necessary and desirable. It is less clear that any changes have, in fact, resulted from this 
process. 

37. NATSIOS, supra note 10, at 73. 

38. At the conference referred to in note 33, one suggestion was that when armed forces 
prepare contingency plans, well before there is any question as to their actual deployment, they 
should work together withNGOs and IGOs. Even if a particular plan were not implemented, the 
experience might contribute to mutual understanding. On the issue of military-NGO 
cooperation, see Roberts, Humanitarian Action in War, Adelphi Paper 305, 1996, at 65-69, and 
Palwankar, supra note 1. 

39. MSF conference, supra note 1. 

40. Even if there is a cease-fire, these activities can pose very real difficulties in the 
immediate aftermath of conflict. It may be that the disarming of fighters is best done by military 
forces, but the training of police by an international civilian police force, preferably unarmed. 
Examples of the difficulty in disarming former fighters include Angola and the position in 
Banja-Luka, Bosnia- Herzegovina, in the summer of 1997. 

41. Hampson, conference paper, supra note 33. 

42. A comprehensive review of the lessons to be learned from the operation in Rwanda is to 
be found in STEERING COMMITTEE OF THE JOINT EVALUATION OF EMERGENCY ASSISTANCE 

to Rwanda, The International Response to Conflict and Genocide: Lessons 

FROM THE RWANDA EXPERIENCE (5 vols., 1996). Sommaruga C, Strengthening the 
Co-ordination of Emergency Humanitarian Assistance, INTL REV. RED CROSS, No. 304, Jan-Feb. 
1995, at 81-86; Fuchs, Emergency Co-ordination — A Problem of Humanitarian Agencies or Rather 
of Policiticians and Generals?, in id. at 87-93. 

43. For the definition of an international armed conflict, see common Art. 2 of the Geneva 
Conventions of 12 August 1949 and Art. 1.4 of Protocol I of 1977, Additional to the Geneva 
Conventions of 12 August 1949; for the prohibition of starvation as a method of warfare, 
Protocol I, Art. 54 (1) . For treaty texts, see ROBERTS & GUELFF, DOCUMENTS ON THE LAWS OF 
WAR (2d ed., 1989). See generally Allen, Civilian Starvation and Relief during Armed Conflict: The 
Modem Humanitarian Law, 19 GEORGIA J. INTL & COMP. L. 1 (1989); Shotwell, Food and the 
Use of Force: The Role of Humanitarian Principles in the Persian Gulf Crisis and Beyond, 30 MlL. L. 
&L. OF WAR REV. 345 (1991); Famine and War (report of an ICRC Seminar by Mourey) , INTL 
REV. RED CROSS, No. 284, 1991, at 549; Plattner, Assistance to the Civilian Population: the 
Development and Present State of International Humanitarian Law, in id., No. 288, 1992, at 
249-263; MACALISTER-SMITH, supra note 13. 

44. Protocol I, art. 70(1). 

45. Id., art. 70(2). 

46. Id., art. 70 (3). 

47. Id., art. 71(1). The protection of NGO relief personnel from attack has been of increasing 
concern. ICRC delegates, for example, have been the victims of intentional attacks. The answer 
of the international community has been the UN Convention on the Safety of United Nations 
and Associated Personnel, G.A. Res. 49/59, Feb. 17, 1995, 34 I.L.M. 482. It may have a limited 
role to play in the protection of such personnel, where they come within its terms, but the major 



259 



NGOs in Situations of Conflict 



problem is likely to be, as usual, enforcement. The general objection of this author to the 
Convention in relation to peace enforcement personnel does not apply in relation to associated 
personnel, but the criticisms based on the drafting are still relevant. See Hampson, The Protection 
of "Blue Helmets" in International Law, 36 MIL. L. &L. WAR REV. 203 (1997). 

48. Note the high threshold for the applicability of Protocol II of 1977, Additional to the 
Geneva Conventions of 12 August 1949, even if it has been ratified by the party in question. 
Protocol II, art. 1. On humanitarian assistance, see id., art. 18. 

49. Id., art. 14. 

50. Common art. 3, Geneva Conventions of 1949. The article is binding on the parties (not 
just individuals) to a non-international conflict; in other words, it is not binding just for the State 
forces. Contrast human rights law, Rodley, supra note 30. 

51. The deteriorating respect for international humanitarian law led to the calling of an 
International Conference for the Protection of War Victims, consisting inter alia of High 
Contracting Parties to the Geneva Conventions, in the summer of 1993. The Conference asked 
for an Intergovernmental Group of Experts to study practical means of promoting full respect for 
and compliance with international humanitarian law. Following a preparatory meeting, the IGE 
met in January 1995. The recommendations focused principally on the need for increased 
dissemination and domestic implementing legislation. While these may be necessary, it is 
submitted that it is inconceivable that they will be sufficient. Effective enforcement, including 
measures by States to persuade other States to exercise jurisdiction, is essential. 

52. On the need for improved protection, see MSF, Conference, supra note 1 ; Roberts, supra 
note 38. On "safe areas," see Hampson, supra note 2, especially pp. 407 and 413. 

53. MSF, Conference, supra note 1; ICRC, Workshop, supra note 1; MacKintosh, 
International Responses to Acute Crisis: Supporting Human Rights Through Protection and 
Assistance, paper for conference at supra note 33. 

54. Hampson, supra note 2, at 413. 

55. Id. at 383-386; Roberts, supra note 38, at 39-44. 

56. Roberts, supra note 38, at 82-84- The hard choices bear a certain ressemblance to 
"triage" in the medical field. 

57. An example of such a doctrine is the British Army Field Manual, Peace Support 
Operations, First Draft, 1997. A possible functional distribution of roles is that the military 
should first create the conditions in which assistance can be delivered and protection afforded to 
civilians, possibly in demilitarized and geographically defined "safe areas." Then it might be 
easier for such assistance to be delivered and protection offered without the need for a high 
profile military presence. The forces would still need to be in theater and might need to patrol the 
perimeter of "safe areas." 

58. Supra note 25. 

59. Working together; MSF, Conference, supra note 1, at 17. MSF appears to have been the 
only external medical NGO in Srebrenica. Supra note 26. 

60. There is a significantly qualified recognition of the confidentiality of the relationship in 
international law. Protocol I, art. 16(3) and Protocol II, arts. 10(3) and (4). 

61. Di Giovanni, The Quick and The Dead: Under Siege in Sarajevo 135-147 
(1994). 

62. Hampson, Legal Protection Afforded to Children under International Humanitarian 
Law, a report prepared for the Machel Study on the Impact of Armed Conflict on Children 66; 
Plattner, Protection of Children in International Humanitarian Law, INT'L REV. RED CROSS No. 
240, 1984, at 140; Singer.The Protection of Children during Armed Conflict Situations, INT'LREV. 

Red Cross, No. 252, 1986, at 133. 



260 



Franqoise Hampson 



63. Di Giovanni, supra note 61, at 144. 

64- MSF, Conference, supra note 1. 

65. E.g., medical personnel may learn how patients received their injuries; those delivering 
relief may learn how the recipients came to need it. 

66. African Rights, Humanitarianism Unbound, Discussion Paper No. 5, November 1994. See 
also Jean, supra note 24- On Rwanda, see AFRICAN RIGHTS, supra note 5. 

67. BUGNION, supra note 24. 

68. MSF, Conference, supra note 1, at 66. 

69. Id. at 15. 

70. Hampson, The International Criminal Tribunal for the Former Yugoslavia and the Reluctant 
Witness, 47 I. C.L.Q. 50 (1998). 

71. Id. at 69-70. 

72. E.g., some journalists are willing to testify, but not others. Id. at 63. 

73. Rules of Procedure, IT/32/Rev. 8, 23 Apr. 1996, rule 70; id. at 62-63. 

74. Generally, the Statute of the Tribunal precludes trials in absentia, but the Appeal 
Chamber expressly envisaged the possibility, in exceptional cases, of proceedings in absentia for 
contempt where the addressee of a binding order fails to appear in Court, thereby obstructing the 
administration of justice. Prosecutor v. Tihomir Blaskic, Judgement on the Request of the 
Republic of Croatia for Review of the Decision of Trial Chamber II, July 18, 1997, Judgement of 
Oct. 29, 1997, IT-95-14-AR108 bis, para. 59. 

75. E.g., in the UK the activities of development/relief NGOs are generally charitable, which 
brings considerable fiscal benefits. In the case of campaigning NGOs, such as Amnesty 
International or the Campaign against the Arms Trade, only some, if any, of their activities are 
considered charitable. 

76. The full title is the United Nations Convention on Prohibitions or Restrictions on the 
Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to 
Have Indiscriminate Effects, reprinted in ROBERTS & GUELFF, supra note 43. 

77. Conference of the States Parties to the Convention on Prohibitions or Restrictions on 
the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or 
to Have Indiscriminate Effects, Protocol on Prohibitions or Restrictions on the Use of Mines, 
Booby-traps and other Devices (Protocol II) as amended, 35 I.L.M. 1206 (1996). 

78. Protocol on Blinding Laser Weapons (Protocol IV), 35 I.L.M. 1218 (1996). 

79. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of 
Anti-Personnel Mines and on their Destruction, 36 I.L.M. 1507 (1997). 

80. In addition to the usual manifestations of a campaign, books were published associated 
with the campaign. See eg., THE ARMS PROJECT AND PHYSICIANS FOR HUMAN RIGHTS, LAND 

Mines: A Deadly Legacy (1993); Roberts & Williams, after the Guns Fall Silent: 

THE ENDURING LEGACY OF LAND MINES (1995). The campaign also provoked interest and 
publications in other quarters. See, e.g., CORNISH, ANTI-PERSONNEL MINES: CONTROLLING 

the Plague of "Butterflies," (1994) ; U.S. Department of State, Hidden Killers - the 
Global Land Mine Crisis (1994) ; The Military Utility of Land Mines . . .? (Smith ed., 

1996); Hampson, The Long Shadow: Land Mines and the Law of Armed Conflicts, Papers in the 
Theory and Practice of Human Rights No. 12, Human Rights Centre, University of Essex. 

81 . One of the significant features of the campaign is the mobilization of medical opinion led 
by Robin Coupland of the ICRC's Division of Health Operations. This has acquired a 
momentum of its own and is not confined to the impact on civilians, but is focusing on the nature 
of the injuries caused by certain weapons. See Coupland, The Effect of Weapons: Defining 
Superflous Injury and Unnecessary Suffering, 3 MEDICINE AND GLOBAL SURVIVAL, at Al (1996) ; 



261 



NGOs in Situations of Conflict 



The Sirus Project: Towards a Determination of Which Weapons Cause 
"Superflous Injury or Unnecessary Suffering" (Coupland ed., 1997). 

82. ICRC, Blinding Weapons: Reports of the Meetings Convened by the ICRC 
on Battlefield Laser Weapons, 1989-1991 (1993); Human Rights Watch Arms 
Project, 7.1 Blinding Laser Weapons (1995). 

83. Prokosch, Small Calibre Weapon Systems: Bringing the Dum-Dum Ban up to Date, Papers in 
the Theory and Practice of Human Rights No. 11, Human Rights Centre, University of Essex, 
1995; Prokosch, Cluster Weapons, Papers in the Theory and Practice of Human Rights No. 15, 
Human Rights Centre, University of Essex, 1995. The development noted in note 82 (i.e., the 
mobilization of professional medical opinion) may result in limited but effective campaigns on 
particular weapon use, notably anti-personnel use of incendiary weapons. 

84. E.g., Edwards & Hulme, supra note 11. 

85. MlNEAR et al, supra note 34; Benthall, Disasters, Relief and the Media, 1993 LB. 

86. Roberts, supra note 38, at 82; Gowing, Real-time Television Coverage of Armed Conflicts 
and Diplomatic Crises: Does it Pressure or Distort Foreign Policy Decisions?, Press, Politics and Public 
Policy Working Papers 94-1 , Harvard, 1994. See also Gowing's review of BELL, IN HARM'S WAY: 

Reflections of a War Zone Thug (1995), in 6.4 Brit. Journalism Rev. 67 (1995). 

87. E.g., the ICRC is organizing a workshop in March 1998 as a practical follow-up to the one 
referred to in von Flue, supra note 1. The first workshop is seen as having involved general 
discussion. The second is designed to be more practical and concrete. 



262 




The Law of Naval Warfare and 
International Straits 



Wolff Heintschel von Heinegg 



WHEN IT COMES TO THE QUESTION OF WHICH RULES of 
international law apply to international straits in times of naval 
armed conflict, one has to distinguish between straits bordered by at least one 
of the parties to an international armed conflict and straits bordered by States 
that are not directly involved in the hostilities. Although the law of maritime 
neutrality — let alone the general law of neutrality — is far from settled, the 
latter situation will, for reasons of convenience, be described as the legal status 
of neutral straits. 1 

Straits are comparatively narrow natural passageways between one part of 
the high seas or an exclusive economic zone and another part of the high seas, 
or exclusive economic zone. 2 Artificial passageways must be distinguished from 
straits. In particular, they are not governed by the international law applicable 
to straits, but rather (and if at all) by special treaty provisions. That being so, for 
the purposes of the present study it is important to note the following 
provisions. 

• With respect to the Panama Canal, the Treaty of 7 September 1977 3 
provides that "in time of peace and in time of war it shall remain secure and 
open to peaceful transit by the vessels o{ all nations on terms of entire 



The Law of Naval Warfare and International Straits 

equality. . . . Vessels of war and auxiliary vessels of all nations shall at all times 
be entitled to transit the Canal, irrespective of their internal operation, means 
of propulsion, origin, destination or armament." 4 

• Pursuant to the Treaty of Constantinople of 29 October 1888, 5 "the Suez 
maritime canal shall always be free and open, in time of war and in time of 
peace, to every vessel of commerce or war, without distinction of the flag." 6 

• Pursuant to Article 380 of the Treaty of Versailles, the Kiel Canal is open 
to all vessels flying the flags of States not at war with Germany. 7 

The Legal Status of Belligerent International Straits 

As far as international straits of the parties to an international armed 
conflict are concerned, neither those not completely overlapped by territorial 
sea nor straits governed by "long-standing international conventions," will be 
dealt with here in depth. 8 In the case of the former, a route through the high 
seas or through an exclusive economic zone will usually exist. Hence, littoral 
States are not bound by the special rules and principles applicable to 
international straits. 9 In the case of the latter, there is only one international 
convention explicitly dealing with the situation of a littoral State being party to 
an ongoing armed conflict. 1 According to Articles 1, 2, 4, and 5 of the 20 July 
1936 Montreux Convention, all neutral vessels enjoy the right o( transit 
passage, as long as they travel through the Bosporus and the Dardanelles by 
daytime, refrain from supporting Turkey's enemies, and respect sea lanes 
designated by the Turkish authorities. However, there is no provision 
restricting the transit right of Turkish warships. Rather, Article 20 provides: 

En temps de guerre, la Turquie etant belligerante, les dispositions des articles 10 
a 18 ne seront pas applicables; le passage des batiments de guerre sera 
entierement laisse a la discretion du Gouvernement turc. 

Thus if Turkey is a belligerent the same rules apply as in international straits 
not governed by a special treaty regime. 

Suspension of the Right of Transit Passage in Time of Armed Conflict? The 

territorial seas of the parties to an international armed conflict are part of the 
general area of hostilities. Therefore, at first glance there seem to exist no 
restrictions on the conduct of hostilities in and over international straits 
completely overlapped by the territorial seas of the parties to an international 
armed conflict. Indeed, subject to the applicable maritime jus in hello, enemy 
vessels and aircraft in such straits may be attacked, and enemy and neutral 

264 



Wolff Heintschel von Heinegg 



merchant vessels may be visited, stopped, and captured. 11 Of particular 
note, the littoral State is entitled to deny all enemy vessels and aircraft the 
right of transit passage. 12 In view of the economic interests involved, 13 
however, it is a matter of dispute whether such straits may also be closed to 
the shipping of States not parties to the conflict, i.e., neutral shipping. 14 

In the course of the deliberations at the 1907 Second Hague Peace 
Conference on Convention VIII, a proposal by the Netherlands on a 
comprehensive prohibition of mining international straits was rejected. 15 
Another, seeking a prohibition on the complete closing of an international 
strait by mines, also failed. 16 Therefore, although a number of delegates 
expressed sympathy for such proposals, Hague Convention VIII lacks any 
provision on the mining of international straits. 17 During the Second World 
War, numerous international straits were mined. 18 Yet during the first two 
years of the war this closure was not complete. In the respective proclamations 
of danger zones, either peaceful shipping was referred to or piloting services or 
safe passages were designated, thus enabling peaceful shipping to transit the 
straits relatively unmolested. 19 Still, in view of the total character of this war in 
the years following, these examples are insufficient to prove the existence of a 
prohibition on entirely closing international straits. State practice after 1945 
also reveals that if States bordering an international strait are parties to an 
international armed conflict, they are inclined to close it even to peaceful 
shipping; they are not prepared to tolerate the dangers otherwise involved. 20 

It seems, however, that a total closure of international straits, especially 
by naval mines, is inconsistent with the 9 April 1949 judgement of the 
International Court of Justice in the Corfu Channel case. 21 As is well 
known, the Court, in view of the state of war alleged by Greece, 
acknowledged Albania's right to restrict the passage of warships. It 
emphasized, however, that this may not lead to "prohibiting such passage or 
subjecting it to requirements of special authorization." 2 Recent state 
practice also indicates the existence of a rule prohibiting the suspension of 
the right of transit passage, even during an international armed conflict. At 
the beginning of the first Gulf War, Iran explicitly acknowledged its legal 
duty to keep open those parts of the Strait oi Hormuz 23 overlapped by its 
territorial sea. 24 When Iran proclaimed a war zone in that sea area and 
closed it to international shipping, the international community, because of 
the overall importance of this strait for international oil trade, reacted with 
vehement protests. 25 In particular, the United States maintained that the 
right oi transit passage remains unaffected by the fact that the bordering 
States are involved in an international armed conflict. 26 

265 



The Law of Naval Warfare and International Straits 

These statements and protests imply that the right of transit passage through 
and over international straits as laid down in Article 38 of the UN Convention 
on the Law of the Sea (LOS Convention) is both customary in character and 
binding upon States parties to an international armed conflict. ll Further 
evidence in favor of the customary character of a comprehensive and 
non-suspendable right of transit passage is Article 16, paragraph 4, of the 1958 
Geneva Convention on the Territorial Sea and the Contiguous Zone. 28 
According to that provision there "shall be no suspension of the innocent 
passage of foreign ships through straits which are used for international 
navigation between one part of the high seas and another part of the high seas or 
the territorial sea of a foreign State." Moreover, it has to be kept in mind that the 
right of transit passage applies especially to straits that have lost their high seas 
character because of an expansion of the territorial sea to twelve nautical miles. 29 
In all likelihood, without compensation in the form of the right of transit passage, 
the legal status of international straits would not have been settled. 30 Finally, the 
Commander's Handbook of the U.S. Navy (NWP 1-14M) provides that naval 
mines may be employed "to channelize neutral shipping, but not in a manner to 
deny transit passage of international straits [. . .] by such shipping." 31 

On the other hand, it must be remembered that some States neither 
acknowledge the customary character of Article 38 of the LOS Convention, 32 
nor agree with its applicability in times of armed conflict. At the beginning of the 
deliberations on the Convention, a number of delegations, while pleading for a 
transit right for vessels in international straits, were hesitant to accept a right of 
overflight as well. 33 In contrast to NWP 1-14M, the German Handbook, in 
section 1042 on mining, provides that "the shipping lanes of neutral and 
non-belligerent States shall be kept open to an appropriate extent, if military 
circumstances so permit." 34 This view is obviously shared by Denmark. 35 

It follows from the foregoing that State practice is conclusive only to the extent 
that, in principle, neutral vessels, i.e., warships and merchant vessels, 36 may not be 
denied the right of transit passage (or of non-suspendable innocent passage) in 
international straits belonging to the parties to an international armed conflict. 3 ' 
However, there is also a tendency towards restriction of this right. 35 Unfortunately, 
it is far from clear under which conditions the littoral belligerent State should be 
allowed to so restrict it. Of course, one possibility is denial to neutral submarines of 
the right to transit a belligerent strait submerged. 39 This restriction could be 
justified by the legitimate interest oi the belligerent littoral States in being fully 
informed of sea traffic in its coastal waters. The interests of the neutral flag States 
would be infringed upon only insignificantly, especially in view of the technical 
difficulties of identifying submerged objects. 40 Still, because of its inconclusiveness, 

266 



Wolff Heintschel von Heinegg 



no further conclusions relating to restrictions on the neutral States' right of 
transit passage can be drawn from State practice. In any event, the reasons 
justifying any limitation of this right must be of considerable weight — for 
example, overwhelming considerations of national security. 41 This follows from 
the fact that the law of both naval warfare and maritime neutrality has to be 
considered to be of an exceptional legal order. 42 

The Right of Overflight The foregoing principles cannot, as such, be applied to 
the right of overflight that Article 38.1 of the LOS Convention includes in 
transit passage. 43 While NWP 1-14M contains a prohibition of entirely mining 
international straits, no provision addresses closure of the airspace above an 
international strait. 44 Of course, enemy military aircraft entering the airspace 
above an international strait overlapped by the belligerent coastal State's 
territorial sea may be attacked, and enemy civilian aircraft may be forced to 
land and be subjected to capture. 45 In principle, neutral aircraft are entitled to 
continue with their normal operations, but if they enter that airspace they do so 
at their own risk. 46 Still, an unlimited application of the peacetime rules on 
overflight in time of armed conflict would meet considerable practical 
difficulties. Aircraft move much faster than ships. The Vincennes incident is but 
one demonstration of the difficulties involved in the identification of aircraft 
within a limited period o{ time. 47 In view of the potential threat posed by 
aircraft, parties to an international armed conflict will hardly be willing to allow 
neutral air traffic to continue using the airspace above their international 
straits. Hence, there seem to be good reasons for a belligerent right to restrict or 
even suspend the right of overflight by neutral air traffic in the airspace above 
international straits in time of armed conflict. Indeed, in State practice there 
are some indications that during an international armed conflict coastal States 
reserve a right to close entirely the airspace above international straits 
overlapped by their territorial seas. 48 This practice, however, is not sufficient to 
prove either the nonexistence or existence of an unlimited right of overflight by 
neutral aircraft in time of armed conflict. Therefore, the legality of a restriction 
of transit passage by neutral aircraft can only be judged, if it can be judged at all, 
ex post in light of the jus ad helium. 

The Legal Status of Neutral International Straits 

Neutral International Straits to Which the Right of Transit Passage Applies. 

The Second Hague Peace Conference. The legal status of neutral international 
straits was dealt with at the Second Hague Peace Conference, in the context of 

267 



The Law of Naval Warfare and International Straits 

the rights and duties of neutral States in naval war. In 1894, the Institut de 
Droit International had proposed a rule according to which "les detroits qui 
servent de passage d'une mer libre a une autre mer libre, ne peuvent jamais etre 
fermes." The Swedish delegate to the Second Hague Peace Conference 
referred to that proposal in these terms: "Si le droit des neutres d'interdire 
l'acces de ses eaux territoriales aux navires de guerre et aux prises est consacre 
comme le porte la proposition britannique article 30, il faudrait ajouter a cette 
disposition une exception du meme contenu que la resolution de l'lnstitut." 49 
The Danish delegate proposed an amendment by which the provisions of 
Hague Convention XIII were not to be understood "de facon a prohiber en 
temps de guerre le passage simple des eaux neutres, unissant deux mers libres 
par un navire de guerre ou navire auxiliaire d'un belligerant." 50 Both proposals 
were aimed at denying neutral States the right to close their territorial seas if 
they formed part of an international strait. The contrary view was taken by the 
Ottoman and Japanese delegates, who wanted to treat international straits in 
the same manner as other coastal waters. 51 In the end, the legal status of 
neutral international straits remained unsettled, even though the Third 
Committee in its report to the plenary had come to the conclusion that "la 
formule adoptee . . . ne tranche nullement les questions precedentes, laissees 
sous l'empire du droit des gens general." 52 Still, it is doubtful that by 1907 a rule 
to that effect was in existence. 53 Although only Japan had explicitly rejected a 
prohibition on closing neutral international straits, the lack o( willingness 
amongst the other delegates to agree upon a special provision on straits cannot 
be ignored. 54 

State Practice. State practice during international armed conflicts before 
1945 was also inconclusive with regard to the existence of a general and 
comprehensive legal duty of neutral States to keep their international straits 
open. 55 Only the Scandinavian States allowed belligerent merchant vessels and 
warships to transit their international straits and, if they had laid mines there, 
offered piloting services. 56 In addition, Denmark, Finland, Iceland, Norway, 
and Sweden, in the Stockholm Declaration Regarding Similar Rules o{ 
Neutrality of 27 May 1938, 57 promised to keep their international straits open 
to belligerent warships. 58 These examples are insufficient to prove the 
existence of a customary rule. 59 On the contrary, other States, like Germany, 
believed that there existed no rule of customary or treaty law obliging neutral 
States to let belligerent merchant vessels freely transit neutral international 
straits. 60 

Relevant state practice since 1945 is also predominantly restricted to 
Scandinavian States, 61 which, by acts of national legislation, have more or less 

268 



Wolff Heintschel von Heinegg 



clearly shown their willingness to keep their international straits open for 
belligerent warships, merchant vessels, and aircraft. 62 Some authors claim the 
existence of a general rule of customary law to that effect. 63 Unfortunately, they 
ignore the fact that such a claim must be based on a general practice 
accompanied by a corresponding opinio juris. Moreover, the question of 
whether the transit of belligerent warships is in accordance with the neutral 
status of the littoral State has to be clearly distinguished from that of whether a 
neutral State is entitled to deny transit through or over its international strait 
to belligerent warships, merchant vessels, or aircraft. Therefore, despite 
assertions to the contrary, one must conclude that until the end of the Third 
United Nations Conference on the Law of the Sea (UNCLOS III) in 1982, 
there existed no customary rule prohibiting the total closure of international 
straits by neutral coastal States. 

The Influence of the International Law of the Sea. So far, we have not taken 
into consideration the progressive development of the international law on 
international straits initiated by the codifications o( the law of the sea, 
especially by the LOS Convention. As already mentioned, Article 16.4 of the 
1958 Geneva Convention on the Territorial Sea and the Contiguous Zone 
provides that there "shall be no suspension of the innocent passage of foreign 
ships through straits which are used for international navigation between one 
part of the high seas and another part of the high seas or the territorial sea of a 
foreign State." 64 Since it was up to the coastal State to determine the 
innocence of passage, the question arose of whether it was entitled to require 
foreign warships to leave the strait should they fail to comply with the laws and 
regulations of the coastal State. Other unresolved issues include the right of 
submarines to transit straits submerged and the duty of foreign military aircraft 
to obtain prior admittance from the coastal State for overflight. 65 

These problems were partly solved by UNCLOS III, especially because 
extension of the territorial sea to twelve nautical miles did not allow the issue of 
international straits to be left unregulated. 66 Now the right of transit passage 
applies in international straits that are overlapped by the territorial seas of the 
littoral States. 67 According to Article 38.2 of the LOS Convention, transit 
passage that "shall not be impeded" 68 is "the exercise of the freedom o( 
navigation and overflight solely for the purpose of continuous and expeditious 
transit of the strait." While exercising the right of transit passage, ships and 
aircraft must proceed without delay; refrain from any threat or use of force 
against the sovereignty, territorial integrity, or political independence of the 
bordering State, or in any other manner violate the principles of international 
law embodied in the United Nations Charter; and limit activities to those 

269 



The Law of Naval Warfare and International Straits 

incident to their normal modes of continuous and expeditious transit, unless 
rendered necessary by force majeure or by distress. 69 Moreover, according to 
Article 39.2, ships in transit shall comply with "generally accepted 
international regulations, procedures and practices" for safety at sea and for the 
prevention, reduction, and control of pollution from ships. This means that 
they are obliged to observe the conventions concluded under the auspices of 
the International Maritime Organization (IMO). 70 Aircraft in transit passage 
shall observe the Rules of the Air established by the International Civil 
Aviation Organization (ICAO). 71 Finally, the littoral State is entitled to 
designate sea lanes and to prescribe traffic separation schemes. 72 However, 
such laws and regulations shall not discriminate in form or in fact among 
foreign ships, or in their application have the practical effect of denying or 
impairing the right of transit passage. 73 This implies that the right of transit 
passage will remain unaffected, even if the vessel or aircraft in transit passage 
violates the regulations adopted by the littoral State. 74 

In view of the customary character of these provisions, we may draw the 
conclusion that warships and military aircraft enjoy an unimpeded right of 
transit passage. 75 Submarines, because of the reference to "normal modes" in 
Article 39.1(c), may transit international straits submerged. 76 The littoral 
States' duty not to infringe upon this right is incumbent on them not only in 
time of peace but also during an international armed conflict at sea if they are 
not parties. 77 If the parties to an international armed conflict may restrict or 
suspend the right o( transit passage only in exceptional cases, then, a fortiori, 
States not parties to the conflict must be subject to even stricter limitations. 

This conclusion is verified by recent State practice. During the Iran-Iraq 
conflict, transit through or over the Strait of Hormuz by the Iranian and the 
Iraqi armed forces was in no way restricted by Oman. The military manuals of 
the U.S. Navy, 78 Canada, 79 and the Federal Republic of Germany 80 also provide 
that neutral States are not entitled to restrict or suspend the transit of 
belligerent warships and military aircraft, or to submit them to stricter 
regulations than those applicable to vessels and aircraft of other States. 81 
Moreover, the continuing validity of the right oi transit passage is an 
appropriate means to meet the object and purpose of the law of neutrality. 82 
Hence, Rauch correctly states: 

One of the advantages of the new transit passage concept is that it keeps the 
littoral States bordering straits with great strategic value out of the vicious circle 
of escalation in times of tension and crisis. If transit through such straits were 
subject to the discretion of the coastal States, they would unavoidably become 
involved, even if the discretionary power were to be exercised evenhandedly, i.e., 

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Wolff Heintschel von Heinegg 



even if they meticulously abided by the rule that all restrictions or prohibitions 
have to be applied impartially to the belligerents. The ramifications of a refusal or 
of a permission of transit in whole or in part — e.g., only surface navigation, or 
surface and submerged navigation, or navigation and overflight — could, albeit 
legally non-discriminatory, in fact be of quite different military and strategic 
value to the parties to the conflict. 83 

As in time of peace, however, belligerent warships in transit must properly 
respect designated sea lanes and traffic separation schemes and must proceed 
without delay. 84 They may not carry out any research or survey activities 
without the prior authorization of the bordering States. 85 The prohibition on 
the threat or use of force against the littoral State is complemented by the 
relevant prohibitions of the law of maritime neutrality as laid down in the 1907 
Hague Convention XIII and as found in customary law. 86 In particular, 
belligerent warships and military aircraft may neither take hostile actions nor 
use these sea areas as a base of operations. 87 Military aircraft must respect safety 
regulations and have due regard for the safety of air traffic. 88 In view of their 
sovereign immunity, belligerent warships are not bound by the provisions of the 
LOS Convention on the protection of the marine environment. 

While submarines may pass through neutral international straits submerged, 
it is not quite clear which additional measures belligerent warships and military 
aircraft in transit may take. 89 According to the Canadian Draft Manual, they 
may transit a neutral strait "in an appropriate state of readiness with 
appropriate sensors activated." 90 NWP 1-14M provides that "belligerent forces 
in transit may, however, take defensive measures consistent with their security, 
including the launching and recovery of aircraft, screen formation steaming, 
and acoustic and electronic surveillance." 91 Military aircraft may "engage in 
activities that are consistent with their security and the security of 
accompanying surface and subsurface forces." 92 The same rules can be found in 
the San Remo Manual 93 The use of acoustic and electronic sensors must be 
considered a normal activity of warships and military aircraft, especially during 
armed conflict, an activity that is not to be equated with "research and survey 
activities" in the sense of Article 40 of the LOS Convention. Otherwise, their 
security would be intolerably jeopardized. 94 

There remain some doubts as to whether the other measures mentioned in 
section 7.3.5 of NWP 1-14M are compatible with the duty of continuous and 
expeditious transit. 95 Since there is no relevant State practice that would allow 
conclusions regarding the current state of the law, one cannot but consider 
such activities as in accordance with the applicable law if they do not: 
(1) endanger the safety of navigation within the strait; (2) present a threat or 

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The Law of Naval Warfare and International Straits 

use of force against the sovereignty, territorial integrity, or political 
independence of the neutral littoral State in a way incompatible with the laws 
of neutrality; or (3) unreasonably exceed what is necessary for a continuous 
and expeditious transit. 96 As regards the use of military aircraft, this may not 
result in a use of neutral waters or airspace as a base of operations. Thus, 
attacks may not be conducted by military aircraft launched from warships 
within neutral international straits. 97 Within and over neutral territorial seas, 
all hostile actions by belligerent forces are prohibited. The fact that parts of a 
neutral's territorial sea form an international strait does not alter anything. The 
right of transit passage implies only that the neutral littoral State is prohibited 
from closing an international strait to belligerent warships and military aircraft; 
it does not mean that the coastal State's sovereignty is no longer protected. 

It needs to be emphasized that the foregoing principles only apply to 
offensive operations. As seen, according to NWP 1-14M and the San Re mo 
Manual "defensive measures consistent with their security" would not be 
contrary to the inviolability of the neutral State's sovereignty. During the 
discussions on the San Remo Manual there "seemed to be general agreement 
that because of the dangers of unlawful attack on a transiting unit by an 
opposing belligerent which might ignore its duty to respect the neutrality of the 
State bordering the strait, . . . the transiting unit should be allowed to go 
through in a high state of readiness and should be able to adopt the defensive 
measures necessary for the self-defence of the unit or force." 98 

Unfortunately, the participants were unable to be more concrete about this 
issue. There is, however, another rule in the San Remo Manual that is of help 
in evaluating the legality of defensive measures taken in neutral waters, 
including neutral international straits. Paragraph 22 provides: 

Should a belligerent State be in violation of the regime of neutral waters . . . the 
neutral State is under an obligation to take the measures necessary to terminate 
the violation. If the neutral State fails to terminate the violation of its neutral 
waters by a belligerent, the opposing belligerent must so notify the neutral State 
and give the neutral State a reasonable time to terminate the violation by the 
belligerent. If the violation of the neutrality of the State by the belligerent 
constitutes a serious and immediate threat to the security of the opposing 
belligerent and the violation is not terminated, then that belligerent may, in the 
absence of any feasible and timely alternative, use such force as is strictly 
necessary to respond to the threat posed by the violation. 

Accordingly, belligerent warships and military aircraft transiting a neutral 
international strait are allowed to take all measures necessary for self-defense 

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Wolff Heintschel von Heinegg 



as acknowledged by customary international law if the neutral littoral State is 
either unwilling or unable to terminate the violation of its neutrality. Thus, the 
sovereignty of the neutral State and the belligerents' interests are equally met. 

Neutral International Straits to Which the Right of Transit Passage Does Not 
Apply. The rules and principles dealt with so far undoubtedly apply to 
international straits overlapped by the territorial seas of neutral coastal States. 
However, according to the LOS Convention the right of transit passage is not 
valid in all straits which — either in general or in specific maritime 
parlance — are used for international navigation. The exceptions have 
repercussions for the law of maritime neutrality, because they concern sea areas 
covered by the territorial sovereignty of the neutral coastal State. 

Exceptions to the Right of Transit Passage According to the LOS Convention. 
Straits used for international navigation between a part of the high seas or an 
exclusive economic zone and the territorial sea or historical bay of a foreign 
State are governed only by the right of innocent passage. 100 Although 
according to Article 45.2 of the LOS Convention there "shall be no suspension 
of innocent passage through such straits," the coastal State will be in a position 
to impose stricter limitations on international navigation than if the transit 
passage regime applied. The decisive differences are that foreign submarines 
may not transit such straits submerged and that foreign aircraft are prohibited 
from entering the airspace above them, unless the coastal State explicitly 
consents. 

Another explicit exception to the transit passage regime is laid down in 
Article 36 of the LOS Convention; it applies "if there exists through the strait a 
route through the high seas or through an exclusive economic zone of similar 
convenience with respect to navigational and hydrographical characteristics." 
If an international strait is not — at least in part — completely overlapped by the 
territorial sea of the coastal States, ships and aircraft of all nations enjoy 
freedom of navigation and overflight in the remaining corridor even if an 
exclusive economic zone has been proclaimed. Such a situation is encountered 
in all straits whose breadth exceeds twenty-four nautical miles measured from 
properly drawn baselines. In straits whose breadth is less than twenty-four 
nautical miles there may also exist a high seas (or EEZ) corridor if the coastal 
States claim a territorial sea of less than twelve nautical miles. 101 Within those 
portions of the strait that are part of the coastal State's territorial sea, ships and 
aircraft only enjoy a suspendable right of innocent passage. 102 

At first glance, the provisions of Article 36 seem rather clear. However, 
their practical application sometimes poses difficult problems. It needs to be 

273 



The Law of Naval Warfare and International Straits 

emphasized that the existence of a high seas or EEZ corridor as such does not 
exclude the applicability of the transit passage regime. The route must be "of 
similar convenience with respect to navigational and hydrographical 
characteristics." If the remaining corridor does not meet these qualifications, 
the transit passage regime will also apply in straits not overlapped by the 
territorial sea of the bordering State. 103 But when is the corridor u oi similar 
convenience"? In view of the wording of Article 36, this will not be the case if 
the navigational channel is not identical with the remaining corridor or when 
transiting through the corridor would result in navigational difficulties or a loss 
of time. 104 

The latter aspect is also of importance with regard to overflight. If the 
corridor, due to the geographic configuration of the bordering coastlines, often 
changes its direction, military aircraft in particular will hardly be able to follow 
it exactly. This problem is not resolved by demanding that pilots decelerate, 
because, should they do so, their aircraft would be more vulnerable to surface 
to air missiles. Hence, the coastal State will have to tolerate flights over those 
parts of the strait overlapped by its territorial sea. 105 

Of course, some will counter these arguments by denying a neutral State's 
duty to have regard for belligerent military considerations. The neutral coastal 
State is, they would argue, obliged to tolerate transit through and over its 
territorial sea only if necessary for the safety of international air and sea traffic. 
If a belligerent is not prepared to assume the risks resulting, e.g., from slow 
flight, it must simply refrain from using the neutral airspace. The 
counterarguments have some validity in time of peace. Although the 
relationship between belligerents and neutrals is to a considerable extent 
governed by the law of peace, the modification thereof by the laws of neutrality 
may not be ignored. The object and purpose of the law of neutrality is to protect 
the neutral against the effects of hostilities and to prevent it from becoming 
(directly) involved in the armed conflict. The parties to the conflict will 
scarcely be willing to limit their operations to corridors that are not oi "similar 
convenience." The neutral State would be obliged to react, possibly by military 
means, to the use of its airspace. Of course, there remains no specific rule of 
maritime neutrality which would permit belligerent aircraft to overfly neutral 
territorial seas in those international straits through which there are high seas 
or exclusive economic zone routes of similar convenience as defined by Article 
36. However, functional considerations seem to justify the conclusion that 
belligerent warships and military aircraft are entitled to transit such straits in 
and over the neutral coastal State's territorial sea. 106 

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Wolff Heintschel von Heinegg 



The third kind of strait excluded from the application of the regime of 
transit passage is dealt with in Article 38.1 of the LOS Convention. This 
exception, generally called the Messina Exception because it has its origin in a 
corresponding endeavour by Italy, applies to a strait that "is formed by an island 
of a State bordering the strait and its mainland." 107 In such a case, transit 
passage shall not apply "if there exists seaward of the island a route through the 
high seas or through an exclusive economic zone of similar convenience with 
respect to navigational and hydrographical characteristics." 108 However, 
according to Article 45 all ships enjoy the right of innocent passage in such 
straits. Although States bordering a strait like that of Messina will regularly try 
to exclude the right of transit passage, they will be entitled to do so only if the 
conditions laid down in Article 38.1 are met. 109 For example, even in the Strait 
of Messina there is no unlimited right to prevent ships and aircraft from 
transiting. 110 Otherwise, ships and aircraft travelling from France to the 
southern and southeastern Mediterranean would be compelled to take the 
route around Sicily, which is about sixty nautical miles longer than the passage 
through the Strait of Messina. It can hardly be said that that route is of "similar 
convenience." 

Straits Governed by hong-Standing International Conventions. Finally — and 
this is a continuing cause for dispute — according to Article 35(c) of the LOS 
Convention the regime of transit passage does not apply to straits "in which 
passage is regulated in whole or in part by long-standing international 
conventions in force specifically relating to such straits." 111 There is no 
indication in the Convention as to which straits qualify for this exception. Still, 
according to the view taken here, only six international straits, if any at all, are 
regulated by such conventions: 112 the Turkish Straits (Bosporus and 
Dardanelles), the Strait of Magellan, the Strait of Gibraltar, the Sound and the 
Belts, and the Aland Islands Strait. 113 

It is beyond any doubt that in the Turkish Straits the right of transit passage 
does not apply, 114 for there are specific rules with regard to transit passage in the 
Montreux Convention of 20 July 1936. 115 In time of peace and in time of war, 
merchant vessels of all nations enjoy an unrestricted right of passage through 
the Dardanelles, the Marmara Sea, and the Bosporus. 116 Article 23 limits the 
right of overflight to civil aircraft. Accordingly, military aircraft may not enter 
airspace above the Straits, either in time of peace or war. 

Special provisions apply to warships; further, the Convention distinguishes 
between warships belonging to States bordering the Turkish Straits and those 
belonging to other States. 117 In principle, all warships are obliged to inform the 
Turkish authorities in advance, by notification of the names, types, and 

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The Law of Naval Warfare and International Straits 

numbers of the ships and of the date of passage. 118 Prior to passage the 
commander must also provide information about the nature of weapons aboard 
his ship. No more than nine ships may transit the Straits simultaneously. The 
aggregate tonnage of the ships may not exceed fifteen thousand tons unless 
they belong to a State bordering the Straits. If they exceed fifteen thousand 
tons, the ships may only transit alone or in the company of two cruisers (or 
destroyers). The total tonnage of warships in the Black Sea belonging to States 
not bordering that sea may amount to thirty thousand tons (or, in the event of 
significant disparity between fleets, a maximum of forty-five thousand tons). 
All warships transiting the Straits are prohibited from launching their aircraft. 
Submarines may not transit, unless they belong to bordering States and 
originate from areas beyond the Black Sea. Such submarines may only transit 
alone, during the day, and on the surface. Laid down in Articles 10 through 18, 
these provisions on warships apply both in time of peace and, if Turkey is not a 
belligerent, in time of war. 119 Warships belonging to the parties to an 
international armed conflict are strictly prohibited from transiting the Turkish 
Straits. 120 

While the Turkish Straits do indeed match the conditions laid down in 
Article 35(c) of the LOS Convention, the other straits mentioned do not; 
however, they clearly qualify as being governed by "long-standing international 
conventions" in the sense of that provision. Freedom of navigation in the Strait 
of Magellan is dealt with in the Boundary Treaty between Argentina and Chile 
of 23 July 1881. 121 That treaty was concluded due to an arbitral award by 
Edward VII. According to Article V, the Strait of Magellan is permanently 
neutralized, and ships of all nations enjoy an unrestricted right of freedom of 
navigation. In Article 10 of the Treaty of Peace and Amity of 18 October 1984, 
Argentina and Chile, explicitly referring to the treaty of 1881, agreed in as 
follows: 122 

The delimitation herein agreed in no way alters what is laid down in the 
Boundary Treaty of 1881, whereby the Strait of Magellan is neutralized in 
perpetuity and unrestricted navigation in it is assured for the flags of all 
nations. . . . 

Since there is no provision in these treaties specifically regulating "passage," 
some argue that Article 35(c) is not applicable and that therefore the Magellan 
Strait is governed by the right of transit passage. 123 However, the missing 
reference to "passage" should not be overestimated. Rather, "navigation" is to 
be understood as comprising passage. 124 This is one of the reasons why, for 
example, the United States acknowledges that the Strait of Magellan falls 

276 



Wolff Heintschel von Heinegg 



under the 35(c) exception. 125 Thus, according the Treaty of 1881 (not Article 
38 of the LOS Convention), warships and merchant vessels of all nations enjoy 
an unlimited right of passage through the Strait of Magellan at all times. 

Since there is no reference to aircraft in either the 1881 or 1984 treaties, it is 
a matter of contention whether aircraft of all nations also enjoy the right of 
non-suspendable overflight. Although Argentina and Chile are seemingly 
unwilling to accept such a right, in light o( long-standing practice a rule of 
customary law to that effect has evolved. 126 Therefore, it may be concluded 
that although the regime of transit passage as such does not apply to the Strait 
of Magellan, ships (according to the Treaty of 1881) and aircraft (according to 
customary law) oi all nations enjoy the right of non-suspendable passage and 
overflight. 

As regards the Strait of Gibraltar, the passage oi ships is subject to 
agreements between France, Spain, and the United Kingdom of 1904, 1907, 
and 1912. 127 There is, however, no indication in those treaties that the parties 
also intended either to guarantee or exclude passage by ships of third States. 128 
When they were concluded, the high seas, including the high seas corridor 
between Gibraltar and North Africa, could not be made subject to bilateral or 
multilateral international treaties. Nevertheless, Spain has repeatedly 
maintained that the Strait of Gibraltar is regulated by the Declaration of 1904 
and is therefore exempted from at least the right of overflight. 129 It is interesting 
to note that during the Yom Kippur War (1973), U.S. military aircraft on 
flights from the Azores to Israel scrupulously kept to the airspace above the 
high seas corridor between the former three-nautical-mile territorial seas oi 
Spain and Morocco. 130 In 1973, however, the regime of transit passage was still 
unknown. Four years after the adoption of the LOS Convention, U.S. military 
aircraft launched from Britain to attack targets in Libya flew over the Strait of 
Gibraltar. The United States justified the overflight based on the Convention's 
right of transit passage. 131 Hence, neither the treaties referred to nor State 
practice allows the conclusion that the Strait of Gibraltar is a strait within the 
meaning of Article 35(c). 132 So far, only Spain has taken a view to the contrary. 
Since it did not protest the 1986 overflight by U.S. military aircraft, the Spanish 
position has no influence on the legal characterization of the Strait of 
Gibraltar. 

With respect to passage through the Baltic Straits (Sound, Great and Little 
Belt), it may be doubted here too whether it is regulated by "long-standing 
international conventions." Denmark has repeatedly referred to the Treaty on 
the Redemption of Sound Dues of 14 March 1857 133 and to the U.S. -Danish 
Treaty of 1 April 1857 134 to maintain that those straits are not governed by 

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The Law of Naval Warfare and International Straits 

Article 34 ff. of the LOS Convention. 135 Accordingly, by the Ordinance of 27 
February 1976 Denmark has subjected transit by warships and overflight by 
military aircraft to prior notice and prior admittance respectively. While in 
principle all States observe these regulations, 136 they have emphasized that the 
1857 treaties were never applied to warships. 137 Rauch takes the position that 
passage in the Baltic Straits is not regulated, either in whole or in part, by the 
treaty of 14 March 1857. He therefore maintains that the straits are governed 
by the right of transit passage in accordance with Part III of the LOS 
Convention. 138 Indeed, the Treaty on the Redemption of Sound Dues contains 
only an indirect reference to the customary freedom oi navigation. On the 
other hand, in the U.S. -Danish Treaty of 1 April 1857 "the free and 
unencumbered navigation of American vessels, through the Sound and the 
Belts forever" is guaranteed. Ultimately, there is little need for a final solution 
to this problem, since such a solution would not clarify a situation in which 
Denmark was neutral. Even if one were prepared to characterize the Danish 
Straits as regulated by "long-standing conventions," doing so would not 
necessarily imply that a neutral Denmark would be entitled to close them to 
belligerent warships and military aircraft. Instead, the practice of Scandinavian 
States already referred to above justifies the assumption that Denmark will 
keep its straits open in the event of neutrality. 139 As regards Sweden and transit 
through the 0resund, that assumption is strengthened by the Swedish 
Ordinance of 17 June 1982, which expressly excludes warships and military 
aircraft from the right of transit passage restrictions. 140 This means that 
Sweden, although considering the 0resund a historical strait, 141 acknowledges 
the continuing validity of the right of passage and overflight by belligerent 
warships and military aircraft in naval armed conflict. Hence, the Danish 
restrictions on passage and overflight do not apply when the bordering States 
are neutrals. 

Finally, Sweden 142 and Finland 143 maintain that the Aland Islands Strait, in 
light of the 3 March 1918 Treaty of Brest-Litovsk and the 20 October 1921 
Treaty Concerning the Non-Fortification and Neutralization o{ the Aland 
Islands, is excluded from the regime of transit passage laid down in Part III of 
the LOS Convention. Indeed, according to Article 5 of the 1921 treaty the 
right oi passage is not restricted but is, instead, subject to the rules of 
international law and to international practice. The question, therefore, is 
whether a specific regulation of passage exists. In that regard, Rauch takes the 
following position: 

Unless one is to throw overboard all rules of treaty interpretation as codified in 
the Vienna Convention on the Law of Treaties, however, it is impossible to 

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Wolff Heintschel von Heinegg 



construe Art. 5 of the Aland Convention as a treaty provision "regulating" 
passage through that strait. 144 

Obviously, Rauch is in favor of a very narrow understanding of the notion 
"regulated" in Article 35(c) of the LOS Convention, since he is prepared to 
accept only explicit restrictions or prohibitions. This notion, however, need not 
necessarily be understood so restrictively. It may well suffice that the provisions 
in question deal with passage at all. Hence, there are good reasons to maintain 
that passage through the Aland Straits is free only to the extent commonly 
understood in 1921. Thus, ships of all nations enjoy the right of passage, whereas 
aircraft are not entitled to overflight. Still, the Aland Straits may not be 
completely excluded from the regime of transit passage. In the treaty of 1921 the 
breadth of the territorial sea is fixed at three nautical miles. Since that treaty is 
still in force and has not been modified, a right of transit passage at least exists in 
the sea areas beyond the three -nautical-mile territorial seas. 

Conclusion 

Practice with regard to international straits has shown that States bordering 
an international strait have continuously endeavored to assimilate the sea 
areas concerned into their territorial sea or even internal waters. The majority 
of these endeavors are inconsistent with the legal regime of international straits 
as it has been developed by State practice and especially by the United Nations 
Convention on the Law of the Sea. In and over international straits a right of 
transit passage exists that shall not be impeded, whether in time of peace or 
armed conflict. 0( course, a belligerent is not obliged to leave unmolested 
enemy vessels and aircraft transiting a strait overlapped by its territorial sea. 
Neutral shipping and neutral aircraft, however, continue to enjoy the right of 
transit passage. Neutral States bordering an international strait may prescribe 
and enforce only regulations that are in conformity with the respective 
provisions of Part III of the LOS Convention. Moreover, they are obliged to 
counter any abuse of the neutral status of the respective waters by any of the 
belligerents. They may, however, neither suspend nor in any other manner 
impede the right of transit passage, even though observing the principle o( 
impartiality. 

0( course, the law of maritime neutrality is far from settled. However, as 
regards the legal status of neutral international straits, it is here maintained 
that there exists a consensus adequately balancing the interests involved: 
neutral States are protected from the adverse effects of the hostilities, and 

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The Law of Naval Warfare and International Straits 

belligerents continue to enjoy the degree oi mobility that is essential for the 
success of their naval operations. In order to preserve that compromise it is 
necessary to counter any effort aimed at a further restriction of the freedom of 
navigation and overflight in and over international straits. Since international 
straits are highly important traffic ways, every interested State should, starting 
in time of peace, take all feasible measures in accordance with international 
law to prevent any infringement of the legal regime of those sea areas. It may be 
emphasized that to secure effectively the international legal status oi 
international straits it is in no way sufficient merely to rely upon one "lead 
nation." Rather, all States concerned must, individually and collectively, take 
the steps necessary. 



Notes 



1. Presently, the law of maritime neutrality is under scrutiny by a committee of the 
International Law Association. However, the discussions have revealed that there only is a fairly 
narrow basis for consensus. 

2. See the definition in United Nations Convention on the Law of the Sea, Dec. 10, 1982, 
art. 37, U.N. Doc. A/CON F.62/1 22, reprinted in 21 I.L.M. 1261 {hereinafter LOS Convention]. 
See also Convention on the Territorial Sea and the Contiguous Zone, Apr. 19, 1958, art. 16(4), 
15 U.S.T. 1606, 516 U.N.T.S. 205. In the Corfu Channel Case, the International Court of 
Justice characterized the respective sea area as an international strait because of "its geographical 
situation as connecting two parts of the high seas and the fact of its being used for international 
navigation." 1949 I.C.J. Rep. 4, 23. 

3. 33 U.S.T. l.T.I.A.S.No. 10,029, reprinted in 16 I.L.M. 1082 (1977). 

4- For an older effort to suspend the right of passage through the Panama Canal by way of 
an extensive interpretation of "defence," see Padelford, Neutrality, Belligerency, and the Panama 
Canal, 35 AM. J. INPLL55 (1941). 

5. Reprinted in 3 AM. J. INTL L. (Supp.) 123 (1909). 

6. For a general overview, see Roussos, Le principe de la liberte de passage du Canal de Suez et 
Vapplication des regies du droit de la guerre maritime, 1 REVUE DE DROIT INTERNATIONAL POUR LE 
MOYEN-ORIENT 151 (1951/52). On the illegality of Egyptian interference with Israeli and 
neutral shipping, see UN Security Council Resolution 95 of 1 September 1951, U.N. Doc. 
S/2298/Rev. 1, and Gross, Passage through the Suez Canal of Israel -Bound Cargo and Israeli Ships, 
51 AM. J. INT'LL. 530 (1957). 

7. Note that on 14 November 1936 the German government had denounced arts. 380 ff. 
Hence, according to a widely held view the Kiel Canal is no longer governed by the relevant 
provisions of the Treaty of Versailles. 

8. LOS Convention, supra note 2, art. 35(c). 

9. Accordingly, the U.S. Navy's Commander's Handbook on the Law of Naval Operations 
provides: 

Ships and aircraft transiting through or above straits used for international navigation 
which are not completely overlapped by territorial seas and through which there is a high 
seas or exclusive economic zone corridor suitable for such navigation, enjoy the high seas 
freedoms of navigation and overflight while operating in and over such a corridor. 

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Wolff Heintschel von Heinegg 



Accordingly, so long as they remain beyond the territorial sea, all ships and aircraft of all 
nations have the unencumbered right to navigate through and over such waters subject 
only to due regard for the right of others to do so as well. 

U.S. Navy, The Commander's Handbook on the Law of Naval Operations (NWP 

M4M), § 2.3.3.2 (1995) thereinafter NWP 1-14M]. 

10. The legal regime of straits in which passage is regulated in whole or in part by 
long-standing international conventions specifically relating to such straits will be dealt with in 
the context of neutral straits. 

11. Rauch, The Protocol Additional to the Geneva Conventions for the 
Protection of Victims of International Armed Conflicts and the United 
Nations Convention on the Law of the Sea: Repercussions on the Law of Naval 

WARFARE 44 (1984); Ronzitti, The Crisis of the Traditional Law Regulating International Armed 
Conflicts at Sea and the Need for Its Revision, in THE LAW OF NAVAL WARFARE 20 (Ronzitti ed., 
1988); DONNER, DIE NEUTRALE HANDELSSCHIFFAHRT IN BEGRENZTEN MILITARISCHEN 
KONFLIKT 143 (1993) ; Baxter, Passage of Ships through International Waterways in Time of War, 3 1 
BRIT. Y.B. iNTL L. 189, 202 (1954); Bothe, Neutrality in Naval Warfare, in HUMANITARIAN 

Law of Armed Conflict: Challenges Ahead— Essays in Honour of Fritz 

KALSHOVEN 403 (Delissen & Tanja eds., 1991); MUNCH, DIE REGIME INTERNATIONALER 
MEERENGEN VORDEM HINTERGRUND DERDRITTEN UN-SEERECHTSKONFERENZ44 (1982). For 
a contrary view de lege ferenda, see Harlow, UNCLOS III and Conflict Management in Straits, 15 

Ocean Dev. & Intl L.J. 197, 206 (1985). 

12. In 1 95 1 , during the Israeli- Arab conflict, Egypt prohibited passage through the Strait of 
Tiran by all enemy warships. Enemy merchant vessels were subject to capture. On 23 May 1967 
President Gamal Abdel Nasser declared the Strait of Tiran closed to all Israeli shipping: "The 
Aqaba Gulf constitutes our Egyptian territorial waters. Under no circumstances will we allow the 
Israeli flag to pass through the Aqaba Gulf." 6 I.L.M. 516 (1967). See also Gross, Passage through 
the Strait of Tiran and in the Gulf of Aqaba, 3 LAW & CONTEMP. PROBS. 125 (1968) ; Hammand, 
The Right of Passage in the Gulf of Aqaba, 15 REVUE EGYPT. DE DROIT INTERNATIONAL (1959). 
During the Iran- Iraq conflict, those parts of the Strait of Hormuz overlapped by the Iranian 
territorial sea were closed to Iraqi shipping. See Amin, The Iran-Iraq War: Legal Implications, 6 
MARINE POL'Y 193, 209 (1982). 

13. For the importance attached to the freedom of navigation in international straits, see 

U.N. Dept of Disarmament Affairs, The Naval Arms Race 49, 68 ff. (1986); 

Alexander, International Straits, in THE LAW OF NAVAL OPERATIONS, 91, 101 ff. (Robertson 
ed., 1991). 

14. For an older, detailed analysis, see Baxter, 31 BRIT. Y.B. INTL L. 202 ff. (1954). As 
already mentioned, this question does not arise with respect to international straits not governed 
by the right of transit passage, i.e., straits "in which passage is regulated in whole or in part by 
long-standing international conventions in force specifically relating to such straits" ILOS 
Convention, supra note 2, art. 35(c) ], "if there exists through the strait a route through the high 
seas or through an exclusive economic zone of similar convenience with respect to navigational 
and hydrographical characteristics" (Id., art. 36), or "if the strait is formed by an island of a State 
bordering the strait and its mainland . . . and if there exists seaward of the island a route through 
the high seas or through an exclusive economic zone of similar convenience with respect to 
navigational and hydrographical characteristics" 1 (Id., art. 38.1) J. According to Article 45 of the 
LOS Convention, in international straits in the sense of Article 38.1, a non-suspendable right of 
innocent passage exists; in straits in the sense of Article 36, a suspendable right of innocent 



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The Law of Naval Warfare and International Straits 

passage exists. (Id., art. 45). See also ROBERTSON, THE "NEW" LAW OF THE SEA, 38 ff. (Newport 
Paper #3, Naval War College, 1992); RAUCH, supra note 11, at 38 ff. 

15. Article 4 of the Netherlands proposal reads, "En tout cas les detroits, qui unissent deux 
mers libres ne peuvent pas etre barrel." Reprinted in NlEMEYER, URKUNDENBUCH ZUM 
SEEKRIEGSRECHT 47 (1913). For the English translation, see III THE PROCEEDINGS OF THE 

Hague Peace Conferences: The Conference of 1907, at 663 (Scott ed., 1921). See also 

the references in LEVIE, MINE WARFARE AT SEA 42 ff. (1992). 

16. See Article 6 (Reserve) of the Texte d'un Projet de Reglement arrete sur la base des 
Deliberations du Comite d'Examen: "La communication entre deux mers libres ne oeut etre barree 
entierement par des mines automatiques de contact. Mais le passage pourra y etre soumis 
a conditions qui seront d£cr£t£es par les autoritis comp£tentes." Reprinted in NlEMEYER, supra 
note 15, at 744; see also Scott, supra note 15, at 674. 

17. In its report to the plenary, the Third Committee declared: 

Enfin la Commission, sur la proposition de la Delegation n£erlandaise eut encore 

a s'occuper de la forme qui serait donnee a la decision du Comite, approuv£e par la 

Commission en principe, et d'apres laquelle, par les stipulations de la Convention 

a conclure rien n'etait change, en quoique ce fQt, a la situation actuelle des detroits. La 

Delegation n6erlandaise dessirait qu'une disposition comportant ce texte fQt ins£r£e dans 

le Reglement concernant la pose des mines. Apres discussion, il fut jug£ preferable de ne 

rien ajouter au texte du Reglement, mais de modifier le passage du Rapport qui parle de la 

resolution prise sur cette question par le Comite" d'Examen; on etablirait dans le Rapport 

que les detroits sont rested en dehors les deliberations de la pr£sente Conference et, tout 

en r£servant express£ment les declarations faites au sein du Comite par les Delegations 

des Etats-Unis d'Amerique, du Japon, de la Russie et de la Turquie, on indiquerait la 

conviction de voir appliquer sur les mines dont on pourrait se servir dans les detroits les 

conditions techniques adoptees par le present Reglement. 

Reprinted in NlEMEYER, supra note 15, at 757, and SCOTT, supra note 15, at 654. See also Levie, 

Commentary on the I 907 Hague Convention VIII, in THE LAW OF NAVAL WARFARE, supra note 

1 1 , at 140, 145 ff., who rightly states that "there is no indication as to what the then existing law 

was actually considered to be with respect to such mining." 

18. For the practice during the First World War, see Levie, MINE WARFARE, supra note 15, 
at 65, 77 ff. 

19. See, inter alia, the announcements of the German government on 9 April 1940 
concerning the Skagerrak between Lindesnes, Lodbjerg, and FlekkerOy, Sandnas Hage 
(reprinted in OBERKOMMANDO DER KRIEGSMARINE, URKUNDEN ZUM SEEKRIEGSRECHT 
[Sept. 1, 1939 bis Aug. 31, 1940], no. 340 [Berlin 1941]) [hereinafter OKM, URKUNDEN ZUM 
SEEKRIEGSRECHT]; on 3 September 1939 concerning the southern entry of the Sound and the 
Great Belt {id., no. 345) ; of 5 and 17 September 1939 concerning the Great F3elt (id., nos. 346 & 
348); of 29 April concerning the Kattegat (id., no. 354). The United Kingdom provided free 
passages in the Strait of Dover and in the Firth of Forth. See the statement by the Danish 
Ministry of Commerce of 3 September 1939. (Id., no. 361). 

20. For example, Swedish Ordinance no. 366 of3 June 1966 (UNST/LEG/SER.B/15, 259), 
as amended on 1 7 June 1982 (Ordinance concerning Intervention by Swedish Defence Forces in 
the Event of Violations of Swedish Territory in Peacetime and in Neutrality, Swedish Code of 
Statutes 1982:756), regulating the rights of foreign warships and military aircraft, is explicitly 
restricted to situations in which Sweden is not a party to the conflict. There remains therefore 
the possibility that Sweden will close its straits to enemy as well as neutral shipping. 

21. 1949 I.C.J. 4. 

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Wolff Heintschel von Heinegg 



22. Id. at 29. 

23. For the characteristics of the Strait of Hormuz and its importance for international oil 
trade, see Milan, Innocent Passage through the Strait of Hormuz, 1982 REVUE HELLENIQUE DE 
DROIT INTERNATIONAL 247, 247 f. 

24. In its statement of 1 October 1980, Iran declared that "in view of its international 
obligations, . . . Iran shall not hesitate in any effort to keep this waterway in full operation." See 
Rousseau, Chromque, 85 R.G.D.I.P. 174 (1981); Amin, 6 MARINE POLT 209 ff. (1982). In his 
letter to the Security Council, the Iranian foreign minister stated: "As certain rumours have been 
spread concerning the Straits of Hormuz, which might disturb international navigation in that 
areas, the Ministry of Foreign Affairs of the Islamic Republic of Iran reaffirms that Iran is 
committed to keeping the Straits open to navigation and will not spare any effort for the purpose 
of achieving this end." U.N. Doc. S/14226 (Oct. 22, 1980). 

25. See the notes of protest by the United States, France, and the Netherlands printed in 85 
DEPT. OF STATE BULL., May 1985, 9 & 46; 86 id. 71 (Aug. 1986) ; 87 id. 52 (April 1987) ; 87 id. 
10 Qune 1987), 87 id. 59, 66 Quly 1987); 27 A.F.D.I. 895 (1981); 33 id. 849 (1987); 13 NETH. 
Y.B.INPLL. 259(1982). 

26. Apart from the references in note 25, see the reply by the Secretary of State to Iranian 
protests against measures taken by the U.S. Navy in the Persian Gulf. In its essential part it reads 
as follows: 

The procedures adopted by the United States are well established and fully recognized in 
international practice on and over international waters and straits such as the Persian 
Gulf, Strait of Hormuz, and the Gulf of Oman. The United States has made clear they will 
be implemented in a manner that does not impede valid exercises of the freedom of 
navigation and overflight and of the right of transit passage. 
Reprinted in 78 AM. J. INTL L. 885 (1984). 

27. In Article 38(2) of the LOS Convention, transit passage is defined as "the exercise in 
accordance with this Part of the freedom of navigation and overflight solely for the purpose of 
continuous and expeditious transit of the strait between one part of the high seas or an exclusive 
economic zone and another part of the high seas or an exclusive economic zone." LOS 
Convention, supra note 2, art. 38.2. For an analysis of the provisions on straits, see Moore, The 
Regime of Straits and the Third United Nations Conference on the La<w of the Sea, 74 AM. J. INTL L. 
77 (1980). 

28. In his speech of 5 February 1987, the British Foreign secretary stated, inter alia, that 
it has been recognized in State practice, international negotiations and the case law of the 
International Court that a special regime for navigation is appropriate in straits. . . . 
International law and practice have now developed to the point where, if the United 
Kingdom extends to 12 miles, we should afford to others the essential rights in some 
internationally important straits for which there is no alternative route, namely, the 
Straits of Dover, the North Channel lying between Scotland and Northern Ireland and 
the passage between Shetland and Orkney. These rights, which are widely recognised as 
necessary, include: a right of unimpeded passage through such straits for merchant vessels 
and warships; a right of overflight; the right of submarines to pass through the straits 
submerged; and appropriate safeguards for the security and other interests of the coastal 
State. 

Hansard, H.L., Feb. 5, 1987, col. 382, reprinted in LAW OF THE SEA BULLETIN, No. 10, Nov. 
1987, at 11. 

In their common statement of 2 November 1988, the French and U.K. Governments 
acknowledged as generally accepted "the existence of a specific regime of navigation in straits," 



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The Law of Naval Warfare and International Straits 

especially "rights of unimpeded transit passage for merchant vessels, state vessels and, in 
particular, warships following their normal mode of navigation, as well as the right of overflight 
for aircraft, in the Strait of Dover." Reprinted in LAW OF THE SEA BULLETIN, No. 14, Dec. 1989, 
at 14- See also ALEXANDER, supra note 13, at 98 ff; Robertson, Passage of Ships through 
International Straits: A Right Preserved in the Third United Nations Conference on the Law of the Sea, 
20VA.J. INT'LL. (1980). 

29. Due to that expansion, in 1 16 cases sea areas formerly belonging to the high seas now 
have to be considered international straits in the sense of Article 37 of the LOS Convention. 
Note, however, that figures to be found in the literature differ considerably; they range from 130 
to "over 116." See 1 O'CONNELL, THE INTERNATIONAL LAW OF THE SEA 31 ff. (Shearer ed., 

1982) ;Koh, Straits in International Navigation (1982); Reisman, The Regime of St raits 

and National Security: An Appraisal of International Law Making, 74 AM. J. INTL L. 48, 59 (1980) . 

30. For example, the German delegate stated, "A prerequisite for the recognition of the 
coastal State's right to extend the territorial sea is the regime of transit passage through straits 
used for international navigation." U.N. Conf. on the Law of the Sea, XIV Off. Rec. 157, 158. 

31. NWP M4M, supra note 9, § 9.2.3, para. 6. 

32. For example, Iran has taken the position that the transit regime is not customary in 
character. U.N. Doc. S/20525, March 15, 1989. When signing the LOS Convention, Iran 
declared that it is binding upon States parties only. This declaration is printed in U.N. OFFICE OF 

the Special Representative of the Secretary-General for the Law of the Sea, 
Status of the United Nations Convention on the Law of the Sea 18 (1985). 

33. Especially by Spain (LOS Convention, II Off. Rec. 136 ff; XIV id. at 149 (i; XVI id. at 
243 ff.); Denmark (II, id. at 124); Algeria (id. at 137 ff.); Albania {id. at 139); Kuwait (id.); and 
the former People's Republic of Yemen {id. at 142). 

34. Federal Ministry of Defense, Federal Republic of Germany, Humanitarian 
Law in Armed Conflict— Manual (1992) [hereinafter ZDv 15/2]. 

35. In a background paper on naval mining of January 1978 (Forudsaetninger for dansk 
sominekrigsforelse, S. Ill 5), the authors come to the following conclusion: "Relative to third 
parties, such minefields may be justified under the principles of international law relating to 
self-defence." 

36. The distinction sometimes found in the literature between neutral warships and 
merchant vessels is made without any justification and can, therefore, be ignored. See Ronzitti, 
Crisis, supra note 1 1 , at 20 (i 

37. See NWP L14M, supra note 9, § 9.2.3; Hoog, Mines, in 3 ENCYCLOPEDIA OF PUBLIC 
INTERNATIONAL LAW 283, 284 (Bernhardt ed., 1982) [Encyclopedia hereinafter E.P.I.L.]. 

38. For a view to that effect, see Bothe, Neutrality in Naval Warfare, supra note 1 1, at 403; 
Ronzitti, Passage through International Straits in Time of International Armed Conflict, in 2 

International Law at the Time of its Codification: Essays in Honour of Roberto 
Ago 363, 377 (1987). 

39. Note that Articles 37ff. of the LOS Convention contain no provision on submarines. 
However, according to Article 39.1(c), ships and aircraft while exercising the right of transit 
passage are obliged only "to refrain from any activities other than those incident to their normal 
modes of continuous and expeditious transit." Hence, submarines are free to transit 
international straits submerged, since that is their normal mode of operation. See Lowe, The 
Commanders Handbook on the Law of Naval Operations, in THE LAW OF NAVAL OPERATIONS, 
supra note 13, at 109, 122; Reisman, supra note 29, at 62 ff. (1980) ; Moore, Regime, supra note 27, 
at 1 1 7 ff. (1980). For the origin of Article 39 and its strategic implications, see Clove, Submarine 
Navigation in International Straits: A Legal Perspective, 39 NAVAL L. REV. 103 (1990); Burke, 

284 



Wolff Heintschel von Heinegg 



Submerged Passage through Straits, 52 WASH. L. REV. 193 (1977) ; Grunawalt, United States Policy 
on International Straits, 18 OCEAN DEV. & INTL L.J. 445 (1987). 

40. For the technical aspects of anti-submarine warfare, seeJOPP, MARINE 200, at 127 fif., 
153 ff. (1989). 

41. As early as 1954 Baxter came to the following conclusion: "There is some basis for 
concluding that a belligerent is under an obligation to provide passage, subject to reasonable 
measures of security and control such as compulsory pilotage and navigation by day, to neutral 
vessels and that it may completely block passage of a strait only as a last resort in the most urgent 
and compelling of circumstances." Baxter, supra note 11, at 204- Of course, this conclusion was 
related to innocent passage, since transit passage was still unknown in 1954- For a contrary view, 
see RAUCH, supra note 11, at 45. Rauch merely acknowledges a belligerent right to subject 
neutral shipping to "reasonable measures of security and control." This conclusion is, however, 
not drawn from State practice but only founded upon the judgement in the Corfu Channel case. 

42. For a characterization to that effect, see Heintschel von Heinegg, The Current State of 
International Prize Law, in INTERNATIONAL ECONOMIC LAW AND ARMED CONFLICT 5, 25 ff. 
(Posted., 1994). 

43. Note that there exists no right of overflight in straits governed by Articles 36 and 38. 1 , 
first alternative. 

44. NWP M4M, supra note 9, § 9.2.3.3. 

45. In this context, it suffices to mention Articles 34 and 39 of the 1923 Hague Rules on 
Aerial Warfare, which can be considered customary law. See SPETZLER, LUFTKRIEG UND 
MENSCHLICHKEIT 156 (1956) . For a more cautious view, see Bierzanek, Commentary on the 1 923 
Hague Rules, in THE LAW OF NAVAL WARFARE, supra note 1 1, at 396, 404 ff. 

46. See Canadian Armed Forces, Law of Armed Conflict Manual (Second 

Draft), § 1521 (n.d.) , [hereinafter CANADIAN DRAFT MANUAL] ; Ronzitti, Crisis, supra note 1 1 , 
at 25. This does not prejudice the legal status of civilian passenger aircraft. 

47. See the ICAO Report, Nov. 7, 1988, 28 I.L.M. 900 (1989); Friedman, The Vincennes 
Incident, U.S. NAVAL INST. PROC, May 1989, at 74; Evans, Vincennes— A Case Study, U.S. 

Naval Inst. Proc, Aug. 1993, at 49. 

48. For example, the Swedish Ordinance of 1966, supra note 20. 

49. Statement by the Swedish delegate during the third session of the second 
subcommittee, July 27, 1907, printed in NlEMEYER, supra note 15, at 1009. 

50. Reprinted in id. at 922. 

51. While the Ottoman delegate referred to the Bosporus and the Dardanelles, the 
Japanese delegate stated, "Le Gouvernement japonais ne prenait aucun engagement concernant 
les detroits qui separent les nombreuses lies ou ilots qui composent l'empire japonais et qui ne 
sont que des parties integrantes de l'empire." Id. at 893. 

52. Report of Oct. 9, 1907, reprinted in id. at 893. 

53. In 1927 Jessup maintained that the applicability of the right of innocent passage to 
international straits "requires no supporting argument or citation." He conceded, however, that 
there was no general agreement with regard to warships. See JESSUP, THE LAW OF TERRITORIAL 

Waters and Maritime Jurisdiction 120 (1927). 

54. The same view was taken by Wehberg, Das Seekriegsrecht, in V HANDBUCH DES 
VOLKERRECHTS 418 (Stier-Somlo ed., 1915). Rauch draws a different conclusion from the 
conference history: "From the opinions expressed, it seemed that a neutral State may forbid even 
innocent passage through limited parts of its territorial waters so far as that was considered 
necessary to maintain its neutrality, but that this prohibition could not extend to straits uniting 
two open seas." RAUCH, supra note 11, at 41. Rauch also refers to the statement of the 



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The Law of Naval Warfare and International Straits 

Norwegian delegate concerning the right of innocent passage in time of war. However, that 
statement contains nothing in relation to international straits; it is proof only for the customary 
character of Article 10 of Hague Convention XIII. Ronzitti, Crisis, supra note 1 1, at 19. 

55. See the references in WHITEMAN, 1 1 DIGEST OF INTERNATIONAL LAW 276 ff. (1968) 
(on State practice during armed conflicts before 1945). 

56. The respective announcements and proclamations are printed in 
Reichs-Marine-amt, Seekriegsrecht IM WELTKRIEG (SAMMLUNG diplomatischer 

NOTEN UND ANDERER URKUNDEN. ZUSAMMENGESTELLT IM AUFTRAGE DES 
STAATSSEKRETARS DES REICHS- MARIN E-AMTS), 3 vols. (1916) ; and in OKM, URKUNDEN ZUM 
SEEKRIEGSRECHT, supra note 19. See also, RAUCH, supra note 11, at 32 ff. 

57. 188 L.N.T.S. 294-331. 

58. See Articles 2.3 and 8.1 respectively for Denmark and Sweden. See also Bring, 
Commentary on the 1938 Stockholm Declaration, in THE LAW OF NAVAL WARFARE, supra note 
11, at 839, 891, who concludes that "the Danish and Swedish Regulations implicitly confirmed 
the traditional right of unimpeded passage of foreign warships in time of war through the Baltic 
Straits." 

59. Note that the Harvard Draft of 1939 contains no explicit prohibition on closing neutral 
international straits. There is only one reference to straits in the commentary on Article 25. That 
commentary is, however, restricted to the Turkish Straits, the Suez, and the Panama Canal. 
Otherwise, it is stated that the Permanent Court of International Justice (PCIJ), in the case of 
the Wimbledon, ruled that the use of international waterways is in accordance with neutrality. 

60. See Memorandum by the German Foreign Office of 6 June 1941, reprinted in OKM, 
URKUNDEN ZUM SEEKRIEGSRECHT, supra note 19, no. 432. 

61. For the few examples of belligerent warships transiting neutral international straits, see 

O'Connell, The Influence of Law on Sea Power 99 ff. (1975). 

62. See the Swedish Ordinance of 1966, supra note 20, and the Danish Ordinance of 27 
February 1976 concerning admittance of foreign warships and military aircraft (U.N. 
ST/LEGSER.B/19, 142). The Swedish Ordinance was revised by the Ordinance of 17 June 1982 
concerning Intervention by Swedish Defence Forces in the Event of Violations of Swedish 
Territory in Peacetime and in Neutrality (Swedish Code of Statutes 1982:756). The restrictions 
of the transit right of foreign warships and military aircraft does not apply in the Oresund, where 
no prior notice is necessary. See also RAUCH, supra note 1 1, at 43 ff. 

63. RAUCH, supra note 11, at 44. Rauch believes that "taken together, doctrine and State 
practice would seem to justify the conclusion that if the littoral States are neutral, innocent 
passage of belligerent warships through international straits in time of war may be interfered with 
only in exceptional cases." See abo 2 OPPENHEIM, INTERNATIONAL LAW 696 (7th ed., 
Lauterpacht ed., 1963), who, by reference to an obiter dictum of the PCIJ in the Wimbledon case, 
claims an unrestrictable right of transit passage. The PCIJ had mentioned "the general opinion 
according to which, when an artificial waterway connecting two open seas has been permanently 
dedicated to the use of the whole world, such waterway is assimilated to natural straits in the 
sense that even the passage of a belligerent man-of-war does not compromise the neutrality of 
the sovereign State under whose jurisdiction the waters in question lie." P.C.I.J. Ser. A., No. 1, 
28. A more cautious approach is taken by Castren, who states, "Transit by belligerent warships 
may probably not, however, be prevented in those straits connecting different parts of the high 
seas where the territorial waters of one or several neutral coastal States meet." CASTREN, THE 

Present Law of War and Neutrality 518 (1954). 

64. In Article 1 7 of its draft (U.N. Doc. A/3 159), the International Law Commission (ILC) 
had proposed the following wording: "There must be no suspension of the innocent passage of 

286 



Wolff Heintschel von Heinegg 



foreign vessels through straits normally used for international navigation between two parts of 
the high seas." Hence, in the final wording there is no longer a reference to the "normal use" for 
international navigation. 

65. See, inter alia, Alexander, International Straits, supra note 13, at 97 ff.; O'CONNELL, 
INFLUENCE, supra note 61, at 103 ff. 

66. 1 O'CONNELL, LAW OF THE SEA, supra note 29, at 317; KOH, supra note 29, at 27; 
Reisman, supra note 29, at 59. 

67. Note that the right of transit passage does not apply to internal waters within a strait 
"except where the establishment of a straight baseline . . . has the effect of enclosing as internal 
waters areas which had not previously been considered as such." LOS Convention, supra note 2, 
art. 35 (a) . Although the legal status of internal waters within an international strait is of special 
relevance for the Northeast and Northwest passages, the status of these sea areas is still unclear; 
see the exchange of notes between the United States and the former USSR in DEPT. OF STATE, 
LIMITS IN THE SEAS, No. 112, at 68 ff. (1992). See also Rothwell, The Canadian-US. Northwest 
Passage Dispute: A Reassessment, 26 CORNELL INT'L L.J. 331 (1993). 

Another open question is the legal status of the entries to an international strait if they are 
completely overlapped by the littoral States' territorial seas. This is the case in the Strait of 
Magellan and in the Fieagle Channel. It follows, however, from the object and purpose of the 
right of transit passage that there also exists a right of passage and overflight that may not be 
hampered or suspended. This is the position taken by the U.S. Department of State vis-a-vis 
Chile and Argentina. See LIMITS IN THE SEAS, No. 112, supra, at 63. 

68. LOS Convention, supra note 2, art. 38.1. For an analysis, see Young, The Evolution of a 
Proposed New Navigation Rule: The "Duty Not to Impede," 17 J. MAR. L. & COM. 119 (1986). 

69. LOS Convention, supra note 2, art. 39.1 (a-c). 

70. Convention on the International Regulations for Preventing Collisions at Sea of 20 
October 1972; International Convention for the Prevention of Pollution from Ships (MARPOL) 
of 2 November 1973; International Convention for the Safety of Life at Sea (SOLAS) of 
1 November 1974. 

71. LOS Convention, supra note 2, art. 39.2(a). Note that State aircraft "will normally 
comply with such safety measures." Id., art. 39.3(a). 

72. Id., art. 41.1. 

73. Id., art. 42.2. 

74. Bryde, Militdrische und sicherheitspolitische Implikationen der neuen Seerechtskonvention, in 
DAS NEUE SEERECHT 151, 176 (Delbriick ed., 1984). 

75. See, inter alia, ROACH & SMITH, EXCESSIVE MARITIME CLAIMS 177 ff. (66 
International Law Studies, 1994) ; MUNCH, DIE REGIME INTERNATIONALER MEERENGEN VOR 
DEM HINTERGRUND DER DRITTEN UN-SEERECHTSKONFERENZ 127 ff. (1982) (on the 
customary character of the provisions). 

76. Alexander, supra note 13, at 91; RAUCH, supra note 1 1, at 48; Robertson, supra note 28, 
at 843 ff; Moore, supra note 27, at 95; Clove, supra note 39, at 108 ff.; Burke, supra note 39, at 
193; Bryde, supra note 74, at 176 f., 182 ff; MUNCH, supra note 75, at 111 ff. 

77. Alexander, International Straits, supra note 13, at 93; RAUCH, PROTOCOL 
ADDITIONAL, supra note 11, at 45 ff; ROBERTSON, supra note 14, at 21 f.; Dinstein, supra 
note 37, at 19 f.; MUNCH, supra note 75, at 44; Harlow, The Law of Neutrality at Sea for the 80's 
andBeyond, 3 UCLA PACIFIC BASIN L.J. 42, 50 (1984) ; Grunawalt, Belligerent and Neutral Rights 
in Straits and Archipelagos, in THE LAW OF THE SEA: WHAT LIES AHEAD? 137 (Clingan ed., 
1988); Ronzitti, Passage, supra note 38, at 366 ff. See also para. 29 of the San Remo Manual: 
"Neutral States may not suspend, hamper, or otherwise impede the right of transit passage 



287 



The Law of Naval Warfare and International Straits 

San Remo Manual on International Law Applicable to Armed Conflicts at Sea , 

para. 29 (Doswald-Beck ed., 1995). Only Lowe seems to have doubts as regards the validity of 
the right of transit passage during armed conflict. Lowe, supra note 39, at 123. 

78. "Customary international law as reflected in the 1982 Law of the Sea Convention 
provides that belligerent and neutral surface ships, submarines, and aircraft have a right of transit 
passage through, over, and under all straits used for international navigation. Neutral nations 
cannot suspend, hamper, or otherwise impede this right of transit passage through international 
straits." NWP 1-14M, supra note 9 § 7.3.5. "The airspace above neutral international straits . . . 
remains open at all times to belligerent aircraft, including armed military aircraft, engaged in 
transit . . . passage." Id., § 7.3.7. 

79. "Warships and military aircraft of a belligerent state may exercise the right of transit 
passage, that is, of essentially unimpeded passage or overflight . . . through certain straits where 
the transit passage applies." CANADIAN DRAFT MANUAL, supra note 46, § 151 1.2. 

80. "While transit passage through international straits . . . include Is] the right of overflight 
and the right of passage in submerged mode." ZDv 15/2, supra note 34, § 1126. 

81. In the Danish background paper, supra note 35, the authors consider the legal status 
unclear. It must be kept in mind, however, that that paper was written in 1978. Moreover, it is 
made clear that "in the case of international straits the legality of a minefield will presumably 
depend on whether passage of the straits by the belligerents is 'innocent' in relation to the peace, 
order and security of the coastal State." 

82. Harlow, supra note 77, at 50. 

83. RAUCH, supra note 1 1, at 46. 

84. NWP 1-14M, supra note 9, § 7.3.5. "The rights of transit passage . . . applicable to 
international straits ... in peacetime continue to apply in times of armed conflict. The laws and 
regulations of States bordering straits . . . relating to transit passage . . . adopted in accordance 
with general international law remain applicable." SAN REMO MANUAL, supra note 77, para. 27. 

85. LOS Convention, supra note 2, art. 40. See also, Alexander, supra note 13, at 93. 

86. "A belligerent in transit passage through, under and over a neutral international strait 
... is required to proceed without delay, to refrain from the threat or use of force against the 
territorial integrity or political independence of the neutral littoral . . . State, or in any other 
manner inconsistent with the purposes of the Charter of the United Nations, and otherwise 
refrain from any hostile actions or other activities not incident to their transit." SAN REMO 
MANUAL, supra note 77, para. 30. See also, Ronzitti, supra note 38, at 369 f. 

87. SAN REMO MANUAL, supra note 77, paras. 15-17; NWP 1-14M, supra note 9, § 7.3.5; 
ZDv 15/2, supra note 34, § 1 1 18 ff. For the Egyptian action taken in the strait of Bab al Mandab, 
see O'CONNELL, supra note 61, at 101 ff. 

88. Alexander, supra note 13, at 93. 

89. Hence, there is no difference with the applicable peacetime rule. In view of the 
vulnerability of surfaced submarines, it would be unrealistic to prohibit submerged transit. 
Moreover, the neutral State is thus not obliged to monitor the strait, which would necessitate the 
use of expensive equipment. See Harlow, supra note 77, at 51 (1984) ; Ronzitti, supra note 38, at 
370 ff. 

90. Canadian Draft Manual, supra note 46, § 1511.2. 

91. NWP 1-14M, supra note 9, §7.3.5. 

92. R,§ 7.3.7.1. 

93. "Belligerents passing through, under and over neutral straits ... are permitted to take 
defensive measures consistent with their security, including launching and recovery of aircraft, 

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Wolff Heintschel von Heinegg 



screen formation steaming, and acoustic and electronic surveillance." SAN REMO MANUAL, 

supra note 77, para. 30. 

94- This may also be based upon the judgement of the ICJ in the Corfu Channel Case, 

because the Court did not consider the transit of British warships, which had been in a state of 

readiness, contrary to international law. 1949 ICJ Rep. 1 ff. See also, Harlow, supra note 77, at 51: 
Because straits are natural "choke points," no naval commander can pass through without 
being prepared to respond to hostile action. In the regime of transit passage, the concept 
of peacetime transit in the "normal mode" includes the use of routine defensive measures 
such as air and surface search radar, and sonar. In wartime, the use of such defensive 
measures, which do not threaten the coastal state or its resource interests, is made even 
more necessary by the heightened potential for imminent attack. Attempts by neutrality 
laws to restrict such measures would be highly unrealistic and possibly counterproductive 
since they could breed disrespect for the laws in general. 

95. For example, common Article 8.2 of the 1938 Stockholm Declaration, supra note 57, 
provides that "[a]ircraft carried on board belligerent warships shall not leave such vessels while 
in . . . territorial waters." There is no indication that this rule is not to apply in international 
straits. 

96. See O'CONNELL, supra note 61, at 103 ff. 

97. See also SAN REMO MANUAL, supra note 77, para. 30. "Belligerents in transit . . . 
passage may not, however, conduct offensive operations against enemy forces, nor use such 
neutral waters as a place of sanctuary or as a base of operations." 

98. SAN REMO MANUAL, supra note 77, explanation of para. 30.1. 

99. RAUCH, supra note 11, at 49. The differences between international straits where the 
right of transit passage applies and those where it does not apply are ignored by Ronzitti. See, e.g., 
Passage, supra note 38, at 363 ff. 

100. LOS Convention, supra note 2, art. 45. See Alexander, International Straits, supra note 
13, at 99, 103. 

101. For example, Finland still claims a territorial sea of four nautical miles in breadth. See 
Law No. 463 of 18 August 1956; LAW OF THE SEA BULLETIN 29, No. 2, March 1985. Therefore, 
in the Gulf of Finland there remains an open corridor. The example given by Alexander 
(International Straits, supra note 13, at 100) concerning the Bass Strait between Australia and 
Tasmania is not valid any longer; on 20 November 1990 Australia extended its territorial sea 
from three to twelve nautical miles. See the Statement by the Permanent Representative of 
Australia to the UN of 29 November 1990, reprinted in LAW OF THE SEA BULLETIN 8, No. 18, 
June 1991. 

102. Alexander, supra note 13, at 100. 

103. RAUCH, supra note 11, at 47 f.; Alexander, supra note 13, at 99 f. 

104. This is the case if the breadth of the remaining corridor is not sufficient for the safety of 
navigation. An example given by Alexander (id. at 100) is the Bahamas. If the Bahamas 
extended the territorial sea to twelve nautical miles, the breadth of the remaining corridor in the 
Providence Channel would measure 0.25 nautical miles. However, IMO requires a breadth of 
three nautical miles in order to guarantee as safe a passage as possible. 

105. RAUCH, supra note 1 1 , at 48. Rauch also refers to strategic submarines, which might be 
unable to keep to the corridor simply because it is not deep enough. 

106. Id. at 48. 

107. The Strait of Messina between the Italian mainland and Sicily has a breadth of two 
nautical miles. For the Italian position during the Conference, see the statement by the Italian 
delegate reprinted in UNCLOS III, Off. Rec. 1 30. See also MUNCH, MEERENGEN, supra note 81 . 



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The Law of Naval Warfare and International Straits 

108. Italy was supported by the British delegation. See UNCLOS, II Off. Rec, Vol. 125. 
According to the British view, the following straits fulfil the conditions of Article 38.1., LOS 
Convention: the Pentland Firth south of the Orkney Islands, and the passage between Cornwall 
and the Stilly Islands. Hansard, 484 H.L., Feb. 5, col. 382. 

109. For further examples (like Messina), see Alexander, supra note 13, at 101. 

110. As of 3 April 1985, Italy has subjected international navigation to a number of 
restrictions. Oil tankers of more than ten thousand tons may no longer transit the strait. Oil 
tankers of more than five thousand tons and all other ships of more than ten thousand tons are 
assigned to compulsory piloting. The United States, by a diplomatic note of April 5, 1985, has 
emphasized that it considers these measures only preliminary in character and not applicable to 
warships; LIMITS IN THE SEAS, No. 112, supra note 67, at 68. 

111. This provision has its origin in corresponding endeavours by Denmark, Finland, and 
Turkey. See UNCLOS, III, Off. Rec. 124 L 132 f. 

112. In Article V, para. 2, of the Egyptian- Israeli Peace Treaty of March 26, 1979, reprinted, in 

The Arab-Israel Conflict and its Resolution: Selected Documents 218 ff. 

(Lapidoth & Hirsch eds., 1992) , the two States have agreed as follows: "The Parties consider the 
Strait of Tiran and the Gulf of Aqaba to be international waterways open to all nations for 
unimpeded and non-suspendable freedom of navigation and overflight. The Parties will respect 
each other's right to navigation and overflight for access to either country through the Strait of 
Tiran and the Gulf of Aqaba." While in view of the date of signature, that treaty will hardly 
qualify as a "long-standing international convention," it is declaratory of the right of transit 
passage as laid down in the LOS Convention. See also MUNCH, MEERENGEN, supra note 75, at 
53; Lapidoth, The Strait of Tiran, the Gulf of Aqaba, and the 1 979 Treaty of Peace between Egypt and 
Israel, 77 AM J. INPLL. 99 (1983). A more cautious view is taken by Alexander, supra note 13, at 
102. See also Fink, The Gulf of Aqaba and the Strait of Tiran: The Practice of "Freedom of 
Navigation" after the Egyptian-Israeli Peace Treaty, 42 NAVAL L. REV. 121 (1995). 

113. See Moore, supra note 27, at 1 1 1 (1980) ; Alexander, supra note 13, at 101 ff.; Barabolja 
in 1 MODERNES SEEVOLKERRECHT 230 (1978); ROACH & SMITH, supra note 75, at 177 ff. 

114. Apart from the sources cited in note 113, see RAUCH, supra note 1 1 , at 50; LIMITS IN 
THE SEAS, No. 112, supra note 67, at 65. There is good reason to believe that the delegates to 
UNCLOS III had these straits in mind. 

115. Reprinted in THE LAW OF NAVAL WARFARE, supra note 1 1, at 437. For an analysis, see 
Vignes, Commentary on the 1 936 Montreux Convention, id. at 468, 472 ff.; MUNCH, supra note 75, 
at45ff. 

116. Arts. 2-5. However, if Turkey is a belligerent, the Turkish Straits remain open for 
neutral merchant vessels only — which have to travel by daytime, must respect the sealanes 
designated by the Turkish authorities (art. 5.2), and are subjected to compulsory pilotage 
(art. 6). 

117. With regard to the passage of the Kiev in 1976, see Knight, The Kiev and the Turkish 
Straits, 71 AM. J. INTL L. 125 (1977) ; MUNCH, supra note 75, at 47 ff. For State practice during 
World War II, see WHITEMAN, supra note 55, at 277 ff. 

118. For States bordering the Straits, the time limit is nine days; for all other States it is 
fifteen days (art. 13). 

119. If Turkey is a belligerent, art. 20 applies. For the wording, see supra, text following note 
10. 

120. Art. 19.2. Note, however, that this does not apply if, under the Covenant of the League 
of Nations or another pact of mutual assistance concluded within the League's framework, there 

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Wolff Heintschel von Heinegg 



exist special obligations for Turkey. This presupposes that the State whose warships are to transit 
the Straits is the victim of an act of aggression. 

121. Martens, XVI NOUVEAU RECEUIL GENERAL 491 (1887). 

122. Reprinted in LAW OF THE SEA BULLETIN, No. 4, Feb. 1985, at 50. 

123. That view is taken by RAUCH, supra note 1 1, at 52. 

124. Hence, Munch in his analysis of the Treaty of 1881 comes to the conclusion that that 
treaty is a typical "long-standing convention in the sense of Article 35(c) UNCLOS." MUNCH, 
supra note 75, at 53. 

125. See the references in LIMITS IN THE SEAS, No. 1 12, supra note 67, at 67; ROACH & 
SMITH, supra note 75, at 194. Seealso note 36 to § 2.3.3.1 of the annotated version of NWP 9, the 
predecessor of NWP 1-14M. 

126. The same position was taken by the U.S. Secretary of State in a statement of 21 
December 1984 (reprinted in LIMITS IN THE SEAS, No. 112, supra note 67, at 67) : 

This long-standing guarantee of free navigation for all vessels has been amply reinforced 
by practice, including practice recognizing the right of aircraft to overfly. . . . Essentially, 
the USG position would be that the 1881 Treaty and over a century of practice have 
imbued the Strait of Magellan with a unique regime of free navigation, including the right 
of overflight. That regime has been specifically recognized and reaffirmed by both 
Argentina and Chile in the Beagle Channel Treaty. Hence, the United States and other 
States may continue to exercise navigational and overflight rights and freedoms in 
accordance with this long-standing practice. 

127. London Declaration by France and the United Kingdom concerning Egypt and 
Morocco, art. VII, Apr. 8, 1904, reprinted in MARTENS, XXXII NOUVEAU RECEUIL GENERAL 18 
(1905). Spain acceded on Oct. 3, 1904. Franco-Spanish Declaration of Mutual Assistance in 
Mediterranean Affairs, May 16, 1907, 204 PARRY'S T.S. 353. Anglo-Spanish Declaration of 
Mutual Assistance in Mediterranean Affairs, May 16, 1907, id. at 179. Franco-Spanish Accord 
concerning Morocco, art. 6, Nov. 27, 1912, 217 PARRY'S T.S. 288. Sometimes the Treaty of 
Utrecht of 13 July 1713, by which Philip V ceded Gibraltar to England, is referred to. However, 
art. 10 does not regulate the high seas corridor between Gibraltar and North Africa. Still, Spain 
maintains that the provisions of the LOS Convention on straits do not apply to that sea area. 
Upon signature, Spain declared that "[tjhe Spanish Government, upon signing this Convention, 
declares that this act cannot be interpreted as recognition of any rights or situations relating to 
the maritime spaces of Gibraltar which are not included in article 10 of the Treaty of Utrecht of 
13 July 1713 between the Spanish and British Crowns," reprinted in STATUS, supra note 32, at 25. 

128. See TRUVER, THE STRAIT OF GIBRALTAR AND THE MEDITERRANEAN 179 (1980); 

Roach & Smith, supra note 75, at 185 ff. 

129. See the references in Alexander, supra note 13, at 102. See also Saenz de Santa & Paz, 
Spain and the Law of the Sea— Selected Problems, 32 ARCHIV DES VOLKERRECHTS 202 (1994). 
When signing the LOS Convention, Spain declared: "It is the Spanish Government's 
interpretation that the regime established in part III of the Convention is compatible with the 
right of the coastal State to issue and apply its own air regulations in the air space of the straits 
used for international navigation so long as this does not impede the transit passage of aircraft" 
(supra note 1 27) . According to the Spanish position, this recognition of the right of overflight is 
without prejudice the to legal status of the Strait of Gibraltar because Spain has made clear that 
its signature does not affect "the maritime spaces of Gibraltar." 

130. Alexander, International Straits, supra note 13, at 102; O'CONNELL, supra note 61, at 98. 

131. Ibid. 



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The Law of Naval Warfare and International Straits 

132. See RAUCH, supra note 1 1, at 52. See also MUNCH, supra note 75, at 52, who considers 
the treaties obsolete. 

133. MARTENS, NOUVEAU RECEUIL GENERAL, serie I, tome XVI, partie II, 345 ff. The 
following States and entities were parties to that treaty: Austria, Belgium, Denmark, France, 
Hannover, the Cites of the Hanse, Mecklenburg-Schwerin, the Netherlands, Oldenburg, 
Prussia, Russia, Sweden-Norway, and the United Kingdom. 

134- U.S. -Danish Convention on Discontinuance of Sound Dues, 1 1 Stat. 719, T.S. 67. 

135. During the deliberations on the LOS Convention, the Danish delegate declared that 
"after negotiations with all interested parties his delegation was satisfied that Art. 35 (c) applied 
to the specific regime in the Danish straits." U.N. Doc. A/CONF.62/SR. 138, at 35 (1980). See 
also U.N. Doc. A/CONF.62/SR. 163, at 10 (1982). During the eleventh meeting of the Second 
Committee the Danish delegate stated "that some straits, such as the Danish straits leading to 
the Baltic Sea, had never been subject to the right of free passage but had been under a special 
regime serving the interests of both the coastal State and the international community; such a 
type of arrangement should remain in effect." UNCLOS III, Off. Rec. 124. For the Order of the 
ICJ of 29 July 1991 on Provisional Measures, see Gray, Passage through the Great Belt (Finland v. 
Denmark), Provisional Measures, Order of July 29, 1991, 42 INPL & COMP. L.Q. 705 (1993); 
Koskenniemi, L'affaire du passage par le Grand Belt, 38 ANNUAIRE FRANQAIS DE DROIT 
INTERNATIONAL 905 (1992). 

136. The former USSR accepted the Danish regulations because it considered the Baltic 
Straits excluded from the regime of transit passage by the Treaty of 1857. See also the references 
in ROACH & SMITH, supra note 75, at 215 ff. 

137. See note 36 to § 2.3.3.1, NWP 1-14M, supra note 9; MUNCH, supra note 75, at 50. 

138. Rauch, DIE SOWJETUNION UND DIE ENTWICKLUNG DES SEEVOLKERRECHTS 81 ff., 
289 ff., 305 (1982). A more cautious view is taken by Bryde, supra note 74, at 187. For the 
contrary view, see MUNCH, MEERENGEN, supra note 75, at 51. 

139. Supra text to notes 55 ff. (for the practice of Scandinavian States). 

140. Ordinance Concerning Intervention by Swedish Defence Forces in the Event of 
Violations of Swedish Territory in Peacetime and in Neutrality, supra notes 20 and 62. See also 
Bring, supra note 58, at 841. 

141. When signing the LOS Convention, the Swedish delegate declared: 

It is the understanding of the Government of Sweden that the exception from the transit 
passage regime in straits provided for in article 35 (c) of the Convention is applicable to 
the strait between Sweden and Denmark (Oresund) as well as to the strait between 
Sweden and Finland (the Aland Islands). Since in both those straits the passage is 
regulated in whole or in part by long-standing international conventions in force, the 
present legal regime in the two straits will remain unchanged after the entry into force of 
the Convention. 
Reprinted in STATUS, supra note 32, at 26. 

142. Id. 

143. See the declaration of the Finnish delegate during UNCLOS III, U.N. Doc. 
A/CONF.62/SR.135 (1980), at 8. 

144. RAUCH, supra note 1 1, at 52. For further references, see ROACH & SMITH, supra note 
75, at 182 ff. 

292 




Some Thoughts on Ideas 

That Gave Rise to International 

Humanitarian Law 

Geza Herczegh 



INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN armed 
conflicts has been defined by the International Committee of the Red Cross 
as "international rules, established by treaties or custom, which are specifically 
intended to solve humanitarian problems directly arising from international or 
non-international armed conflicts and which, for humanitarian reasons, limit 
the right of parties to a conflict to use the methods and means of warfare of 
their choice or protect persons and property that are, or may be, affected by 
conflict." 1 

One can, of course, refer more concisely to the "law of armed 
conflicts" — usually divided into two branches, the law of Geneva and the law 
of The Hague. The Geneva Conventions relating to the protection of victims 
of armed conflicts are, after the United Nations Charter, the most widely 
accepted international instruments and constitute an impressive set of legal 
norms presented in more than six hundred articles. 

As we prepare to pass from the second to the third millennium, and in spite 
of the great progress made in this field, grave violations of the law of armed 



Humanitarian Law 



conflict, sometimes degenerating into veritable genocidal feuding between 
ethnic groups, can still be witnessed. There are even cases involving members 
of regular armies on peace -keeping missions who fail to respect the rules of 
humanitarian law. These facts invite us to enquire into the humanitarian ideas 
that have promoted the development of this set of legal rules, and into the 
difficulties lying in the way of its implementation. 

In this context, it may be of interest to recall one of Plato's famous 
Dialogues, in which his characters converse as follows: 

"And they will conduct their quarrels always looking forward to a 
reconciliation?" 

"By all means." 

"They will correct them, then, for their own good, not chastising them with a 
view to their enslavement or their destruction, but acting as correctors, not as 
enemies." 

"They will," he said. 

"They will not, being Greeks, ravage Greek territory nor burn habitations, 
and they will not admit that in any city all the population are their enemies, men, 
women and children, but will say that only a few at any time are their foes, those, 
namely, who are to blame for the quarrel. And on all these considerations they 
will not be willing to lay waste the soil, since the majority are their friends, nor to 
destroy the houses, but will carry the conflict only to the point of compelling the 
guilty to do justice by the pressure of the suffering of the innocent." 

"1," he said, "agree that our citizens ought to deal with their Greek opponents 
on this wise, while treating barbarians as Greeks now treat Greeks." 2 

In other words, proper treatment had to be given to Hellenes in their 
dealings with each other but needed not be accorded to barbarians. A double 
standard of conduct in armed conflicts emerges from these lines, one so 
characteristic oi the history of humanitarian law — the dichotomy between the 
desired and the actual conduct, the norm and the practice — while at the same 
time reflective of the differences between total and limited wars, or, to put it in 
a different way, conflicts between systems and conflicts within a system. 

The Greek city-States formed a kind of international community — a 
political system — surrounded by an alien "barbarian" world. In the teachings oi 
Christianity there undoubtedly existed a tendency towards universality — the 

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Gtza Herczegh 



Gospel was meant for all — but there was a time when the Roman Catholic 
Church, organized as a political power, held the view that "fides non est habenda 
cum infidelibus" (promises made to infidels need not be kept). Agreements 
concluded with rulers outside of Christendom were not binding; the 
international legal community included only the Christian States. In the 
sixteenth century it was not an easy task for Francisco de Vitoria to 
demonstrate that the Indians were also legitimate owners of their land and 
properties — in other words, genuine subjects of law. 3 It is also true that his 
teachings generally failed to prevail in the practice of his own time. The lot of 
the Indians in the wars of the conquistadors was a hard one — either 
extermination or slavery. 

From the works of Hugo Grotius, the greatest figure ever in the science oi 
international law, we get a dark and dismal picture of contemporary rules of 
warfare: "Such persons therefore may be slain with impunity in their own land, 
in the land of an enemy, on land under the jurisdiction of no one, or on the sea. 
. . . How far this right to inflict injury extends may be perceived from the fact 
that the slaughter even of infants and of women is made with impunity, and 
that this is included in the law of war. . . . Not even captives are exempt from 
this right to inflict injury." 4 Following Horatius, Grotius admits that a prisoner 
may be killed, but he qualifies the rape of a woman as a violation of the law of 
nations. "It is not strange," he stated, "that the law of nations has permitted the 
destruction and plunder of the property of enemies, the slaughter of whom it 
has permitted." 5 Also, " [b]y the law of nations not merely he who wages war for 
a just cause, but in a public war also, any one at all becomes owner, without 
limit or restriction, of what he has taken from the enemy." 6 As a result of the 
authority he attributed to Greek and Roman authors oi antiquity, Grotius still 
considered this to be lawful, a conclusion likewise supported by the practice of 
the Thirty Years' War, which was raging when his book was published. But at 
the same time he expressed the opinion "that many things are said to be 'lawful' 
or 'permissible' for the reason that they are done with impunity, in part also 
because coactive tribunals lend to them their authority; things which 
nevertheless either deviate from the rule of right (whether this has its basis in 
law strictly so called or in the admonition of other virtues) or at any rate may be 
omitted on higher grounds and with greater praise among good men." 7 Grotius 
warned against undertaking wars rashly even for just causes, and referring to 
criteria of justice, morality, and equity, also made noble attempts to convert the 
long-standing practices of belligerents into a more humane form of conduct. 

At the same time, historical research reveals not only a great deal of cruelty, 
devastation, and destruction in armed conflicts but also many efforts designed 

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Humanitarian Law 



to reduce suffering and assist the victims. King Cyrus of Persia, when taking 
Babylon in 538 B.C., strictly obliged his soldiers to show respect for the sanctity 
of shrines and to treat the vanquished peoples humanely. The Code of Manu in 
India, dating from the first century B.C., forbade the use of fiery arrows and 
poisoned spears, as well as the killing of wounded or sleeping men. 8 The 
Romans held the view that the use of poison in war should be forbidden: "Armis 
bella non venenis geri debere" 9 When Alaric took Rome in A.D. 410, his Goths 
respected the Christian churches and spared the lives of those taking refuge 
there. 10 Still more examples may be found. The Lateran Council of 1139 
declared the use of bows and arrows illegal. 11 The prohibition of the use of 
various weapons and the designation of days on which it was forbidden to wage 
war were matters of controversy at that time; so too were the rules of knightly 
warfare, and even the treatment of prisoners of war. 12 The principal duty of 
certain orders of chivalry, such as the Order of St. John of Jerusalem (otherwise 
called the Hospitallers), 13 was precisely to redeem Christian prisoners from 
pagan captivity. 

Similar ideas and conceptions are found not only in the community of the 
Christian feudal States taking shape amid the ruins of Roman civilization, but 
also in the Islamic world, 14 the great civilisations of Asia, 15 and elsewhere. 16 
What is more, if one continues with these historical investigations it is possible 
to discern, in addition to sometimes exaggerated but never unfounded 
information on the havoc wreaked by war, signs of the efforts made by every 
people in every age to reduce that devastation. For example, Diallo and others 
who explored the humanitarian traditions among the peoples of sub-Saharan 
Africa demonstrated that when engaged in armed conflicts they displayed, in 
several respects, both moderation and clemency to their enemies. 17 

However, neither these rules — however respectable — for conduct 
prevailing within a limited space, nor the customs of peoples who had no State 
organization at the time, can justifiably be included in the body of international 
law of armed conflicts as giving protection to victims; one cannot begin the 
history of that law with data taken from the remotest times. The examples cited 
above are only elements, building blocks which contributed to the emergence 
of an international custom over the course of long centuries; they cannot 
qualify as international law in the strict sense of the word. Their application in 
inter-State relations was not binding, an indispensable criterion of the rules of 
international law. Moreover, they drew no support from an underlying idea 
that protection is extended equally to every man, by virtue of his being a man. 
Finally, they did not pretend to universality, which is one of the essential 

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G6za Herczegh 



characteristics of our international law protecting the victims of armed 
conflicts. 

What are the origins of these principles? From where and how did the ideas 
that inspired their content emerge? Is it possible to deduce from human nature 
any rule stipulating that during armed conflicts the civilian population has to 
be protected and certain groups of the population accorded special care, or that 
those who belong to the armed forces, but because of injury, sickness, or other 
reasons have become unfit for combat or unable to fight and have surrendered 
require protection of their lives, health, and human dignity, without 
discrimination based on origin, race, nationality, cultural affinity, or other 
criteria? 

The classic authors on the theory of international law, such as Grotius, his 
predecessors, and his followers, were inspired by a natural law approach. The 
essence of the natural law approach was that there are rights and duties 
preceding positive law or superior to it which can be deduced from nature by 
the intellect of man. The positive — "the laid down" — rules of existing legal 
orders are valid and have to be applied insofar as they correspond to the higher 
norms of natural law. The school of natural law played a very important role in 
the development of international law, one which was necessary, even 
indispensable, to the search for a theoretical basis on which to vindicate a 
system of law whose existence and legal nature were far from unquestionably 
evident to, or generally accepted by, people living at the time. It is for this that 
we have to appreciate and respect the work of this school of thought. 

However, it now seems unnecessary to point out that the laws of human 
nature and those of human societies — and more particularly the concepts 
formed about them — were quite different in the various periods of history. 
There were times when slavery and serfdom were considered to correspond to 
the rules of natural law, the slave trade was widely practised, and equality of the 
equal rights of men, not to mention the equality of races, was hardly accepted. 

The natural law concept prevailing in the sixteenth and seventeenth 
centuries could not afford a solid basis for the inception and expansion of a real 
humanitarian law, but it must be said that the natural law schools of later 
periods manifested a great deal of flexibility and a capacity to adapt to the 
needs and exigencies of their times. In the new formulations of this doctrine, 
natural law increasingly became a set of moral norms accepted in a given age 
and expressing what was considered to be good and just by members of the 
society. In this sense, natural law theories had a great impact on international 
humanitarian law. Professor Jean Pictet, an eminent authority on the theory of 
this law, has pointed out that humanitarian law is said to be the offshoot of 



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Humanitarian haw 



natural law. However, he himself can hardly be counted among the adherents 
of the school of natural law, since he takes a sceptical view of the existence of 
that law and is willing to recognize only the notion of a higher ideal order: 
"Nous definirons . . . le droit naturel, source du droit humanitaire, comme 
I'ensemble des droits que chaque homme revendique pour lui et qu'il est en 
meme temps pret a accorder aux autres." 18 

The unquestionable merit of the teachings of the natural law school — that 
of Vitoria, Gentili, Grotius, and others — is that it expressed and promoted the 
conviction that there is a law of war, a "jus in hello, '■' and that even during armed 
conflicts parties have to obey some particular rules of conduct. The forms of 
restraint that they must manifest in combat situations and the groups of 
persons to be protected have changed over time. To explain this, we have to go 
beyond the natural law concept to discover the underlying social structure, the 
relations between the various social classes and strata and their struggle for 
wealth and power. Indeed, natural law notions include a great many 
sociological elements, more than would generally come to mind today. What 
the authors of yore wrote about the sociability and companionship of perfect 
communities is institutionalized by the concept of interdependence and given 
numerical expression by the share of foreign trade in the national income. In 
order to give an adequate expression to the social jeality underlying these 
concepts, we have therefore to translate the sociological elements and 
standpoints into the language of today's social science. The emergence of 
human rights has to be explained in terms not of the law of human nature, but 
rather of social conditions which have raised the value of the individual. 

Before sketching out some of these conditions, we have to consider another 
aspect of the problem. In the past, clemency was shown during military 
operations only to members of other human groups that belonged to the same 
race or community. In conflicts between political entities with similar social 
and economic systems and hence a number of similar features with respect to 
legal order and culture, adversaries showed more mercy to each other's people 
and their property than did States and nations with different systems or at 
different levels of development. The reason was in all probability that 
belligerents having similar features could more easily adapt to each other's 
social organization; the established order of values of the parties in conflict 
were identical or at least similar, so they did not strive to destroy the 
opponent's existing order or change it radically. In the course of history when 
groups of such States constituted a "political system" (e.g., the Greek 
city-States or Christian States of feudal Europe), their members felt linked in 
solidarity in the face of attacks from outside the system. The wars waged inside 

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G6za Herczegh 



the system, judged by the standards of the period, were less destructive and less 
ruthless than were those waged against States and peoples outside it. But as for 
barbarians, aliens living outside the same system, their form of civilization had 
either to be annihilated or rendered harmless forever. 

However, we have to guard against oversimplification. Even within one 
period we can find many examples of divergent practice, e.g., in the struggles 
between knightly troops or in the behavior of knights fighting against heretics 
or peasants in revolt. In accordance with the idea just discussed, these latter 
conflicts ought to be regarded as wars between systems, even if they took place 
within the boundaries of a single State; for example, peasant revolts attacked 
the foundations of the feudal system and were aimed at changing that system. 
The hatred and thirst for revenge that predominated during such wars and the 
accompanying misconceptions and preconceptions — i.e., subjective 
factors — prevented the recognition of objective interests. The attainment of 
rapid and decisive military success, and the seeking of momentary advantage 
clashed more than once with the remoter, higher interests of the State 
participating in the armed struggle. 

The military campaigns of Genghis Khan's armies brought with them 
massacres and the destruction of prosperous towns and irrigation works. Such 
cruel methods of warfare undoubtedly contributed to their initial successes, but 
ultimately deprived the mongols of the fruits o( their victories. The massacres 
and devastation impeded economic development and caused general misery, 
with dire consequences felt even decades and centuries later. 

Generally speaking, the political systems of earlier periods were scarcely able 
to establish mutual contacts with other systems or their members, and they 
were unable to integrate them into their own system while respecting their 
particularities. The pre-Columbian civilizations of the Western Hemisphere 
were completely destroyed by Spanish colonization — to cite but one 
well-known example. A great deal of time and a sustained evolution were 
needed to attain the openness and the flexibility that enabled the international 
community of States (originally confined to the European continent) to 
become truly universal, united in diversity and integrating different nations, 
civilizations, and cultures. 

Returning to the emergence of human rights, the most convincing 
explanation may be found in the social and political evolution of certain 
European States — first in the Low Countries and later in England and several 
other countries where new social structures appeared that gradually led to the 
abolition of feudal privileges. The burgher or commoner, in addition to his 
economic wealth, attained some measure of political power and influence and 

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tried to develop new political theories and practice. In this development, great 
significance has to be attributed to the intellectual current of the 
Enlightenment. 

It would be fascinating to analyze in detail the way in which those ideas led 
to a radical transformation of political thinking, but the present article can 
mention no more than a few outstanding steps in this evolution. The 
Declaration of Independence of 1776 stated solemnly that: 

We hold these truths to be self-evident, that all men are created equal, that 
they are endowed by their Creator with certain unalienable Rights, that among 
these are Life, Liberty and the pursuit of Happiness. — That to secure these 
rights, Governments are instituted among Men, deriving their just powers from 
the consent of the governed. — That whenever any Form of Government 
becomes destructive of these ends, it is the Right of the People to alter or to 
abolish it, and to institute new Government, laying its foundation on such 
principles and organizing its powers in such form, as to them shall seem most 
likely to effect their Safety and Happiness. 19 

Human beings were no longer the humble and obedient servants of the 
ruling sovereigns but rather citizens of their States, with inalienable rights. This 
was the time of the first declarations of human rights on American soil, as well 
as on the European continent, where the French declaration of 1789 became 
the best known and exercised the greatest influence. The individual, with his 
intrinsic value and fundamental, inalienable rights, has to be respected and 
protected even in the midst of a war — an idea that had far-reaching 
consequences for the concept of the law of armed conflict. 

A gradual development, confined to relations between European States, 
could be observed especially during the eighteenth century. The commanders 
in chief of the parties at war against each other began increasingly to conclude 
agreements for the exchange of the wounded and sick. The treatment of 
prisoners o{ war also improved. Jean-Jacques Rousseau wrote in his Contrat 
Social that: 

War ... is something that occurs not between man and man, but between States. 
The individuals who become involved in it are enemies only by accident. They 
fight not as men or even as citizens, but as soldiers; not as members of this or that 
national group, but as its defenders. A State can have as its enemies only other 
States, not men at all, seeing that there can be no true relationship between 
things of a different nature. . . . This principle is in harmony with that of all 
periods, and with the constant practice of every civilized society. . . . Even when 
war has been joined, the just Prince, though he may seize all public property in 

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enemy territory, yet respects the property and possession of individuals, and, in 
doing so, shows his concern for those rights on which his own laws are based. The 
object of war being the destruction of the enemy State, a commander has a 
perfect right to kill its defenders as long as their arms are in their hands: but once 
they have laid them down and have submitted, they cease to be enemies, or 
instruments employed by an enemy, and revert to the condition of men, pure and 
simple, over whose lives no one can any longer exercise a rightful claim. 20 

Equally remarkable is the assertion of the Swiss Emerich de Vattel, who says in 
this connection that "as soon as the enemy has been disarmed and surrendered, 
nobody has the right to take his life. It must be kept in mind that the prisoners 
of war are persons and as such they are innocent." 21 

The influence of these ideas on international practice is illustrated in a letter 
from Talleyrand, the French foreign minister, sent to Napoleon on 
28 November 1806. In it he faithfully echoes Rousseau's statements: 

As a consequence of the precept that war is an interrelation not between man 
and man but between State and State in which individuals are adversaries only 
by accident, the law of nations does not permit that the law of war and the right 
of conquest deducible from it be extended to peaceful and unarmed citizens. . . . 
This law, offspring of civilization, has promoted the advance of progress. To it 
Europe has to be grateful for the preservation and expansion of her prosperity in 
the midst of wars frequently occurring and dividing her. 22 

This practice was a logical consequence of the fact that previous wars had 
been fought primarily for dynastic purposes, for the maintenance or restoration 
of the balance of power in Europe, which did not affect the foundation of the 
continent's social and political order. They were all conflicts within the 
existing political system. It is true that Napoleon tried to transform the 
European community of States under the hegemony of his French Empire, but 
with his final defeat this community and with it the balance o( power was 
restored. 

Nonetheless, in the nineteenth century the international community of 
States was no longer restricted to Europe. As a consequence of the first great 
wave of decolonization, not only the United States in North America but also 
the newly independent countries of Latin America became members. The 
process was slow and not without difficulties and conflicts. The wave of 
decolonization was followed by a new period of colonization, which extended 
the rule of the European powers to Africa and some parts of Asia. Their 
technical civilization, with all its merits and faults, came gradually to conquer 
the globe. Nevertheless, the example was there: former colonies could 

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successfully attain their independence and become members of an enlarged 
community of States, with equal rights. The existing international system, with 
its manifest tendency toward globalization, transformed former conflicts 
between different systems into conflicts within the system. In this sense, it 
constituted an important step towards the universality o{ the international 
community, and it had profound consequences for the rule of law in 
international relations. 

However, we have gone too far forward and now have to return to the 
mid-nineteenth century. Besides the modification of the place and role of the 
individual in society, and in addition to the broadening of the international 
community, a third important element has to be taken into consideration. This 
element can be defined as the awareness of the magnitude of dangers 
threatening both soldiers and civilians on account of the destructive power of 
new weapons. With regard to organization, the size of armies increased greatly. 
In 1066, the battle of Hastings, which decided the fate of England for centuries, 
was fought by between five and six thousand men on each side, and even 
though (as shown on the famous Bayeux tapestries) the battle must have been 
very ferocious, loss of life remained within tolerable bounds. In the Napoleonic 
wars, armies of a hundred thousand men clashed, and the numbers of dead and 
wounded soldiers increased accordingly. Developments in weaponry and its 
destructive power during the nineteenth century made the proportion of the 
victims of armed conflicts grow ever higher. 

In 1859, at the battle of Solferino, thirty-eight thousand soldiers were killed 
or wounded in the course of a few hours. The majority of the wounded died for 
lack of proper medical care and attention. Theirs was "unnecessary suffering," 
because being hors de combat they were unable to fight against the enemy. Four 
years later, at Gettysburg, the best infantry divisions o{ the Confederacy 
perished under the murderous fire of Union artillery. The appearance of new 
destructive weapons induced governments to prohibit the use of at least some 
of them. In 1868, a Declaration renouncing the use in time of war of explosive 
projectiles under four hundred grams in weight was signed at St. Petersburg. It 
was followed in 1899 by the Declaration concerning asphyxiating gases and by 
the Declaration on expanding bullets, signed at The Hague. 

I shall not continue with this list, which is long and passes through this 
century to our day. What I must point out, however, is that a Geneva 
businessman, Henri Dunant, sought an audience with Emperor Napoleon III 
and therafter followed him to the theater of operations in Northern Italy. As a 
result he witnessed the battle at Solferino and the sufferings of the tens of 
thousands of soldiers lying wounded on the battlefield. It was under the 

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influence of this distressing experience that he wrote his work, A Memory of 
Solferino. The book had considerable impact throughout Europe. In it Dunant 
proposed that during peacetime relief societies should be established in all 
countries to support the medical services of the armed forces in time of war, 
and that States should conclude an international convention in support of the 
operation of such societies. The first proposal led to the birth of the Red Cross 
movement, and the second became the starting point for the first Geneva 
Convention. In 1864 the Swiss Federal Council convened a Diplomatic 
Conference which led to the signing of the first Geneva Convention on 
22 August — this being a relatively short convention aimed at improving the 
condition of the wounded in armies in the field. 

Its limited number of articles, some of which became obsolete with the 
passing of time (e.g., the "neutrality" of ambulances, military hospitals, and 
their personnel) constituted the starting point of the Geneva Law on the 
protection of victims of armed conflicts. Despite its shortcomings